Glassroth v. Moore

• Decision Date: 01 July 2003
• Docket Number: No. 02-16708.,No. 02-16949.,02-16708.,02-16949.
• Citation: Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003)
• Parties: Stephen R. GLASSROTH, Plaintiff-Appellee, v. Roy S. MOORE, Chief Justice of the Alabama Supreme Court, Defendant-Appellant. Melinda Maddox, Beverly J. Howard, Plaintiffs-Appellees, v. Roy S. Moore, in his official capacity as Administrative Head of the Alabama Judicial System, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

335 F.3d 1282

Stephen R. GLASSROTH, Plaintiff-Appellee, v.Roy S. MOORE, Chief Justice of the Alabama Supreme Court, Defendant-Appellant.

Melinda Maddox, Beverly J. Howard, Plaintiffs-Appellees, v.Roy S. Moore, in his official capacity as Administrative Head of the Alabama Judicial System, Defendant-Appellant.

No. 02-16708.

No. 02-16949.

United States Court of Appeals, Eleventh Circuit.

July 1, 2003.

Herbert W. Titus, Virginia Beach, VA, Phillip L. Jauregui, Jr., Gray & Jauregui, LLP, Birmingham, AL, for Moore.

Marc D. Stern, New York City, Ayesha N. Khan, American United, Washington, DC, William Z. Messer, Robert J. Varley, Varley & Messer, L.L.P., Morris S. Dees, Rhonda Brownstein, Danielle Jeannine Lipow, J. Richard Cohen, Southern Poverty Law Center, Robert Marc Weinberg, Thomas, Means & Gillis, P.C., Montgomery, AL, for Plaintiffs-Appellees.

Peter A. Gentala, Scottsdale, AZ, for Amicus, Alliance Defense Fund Law Ctr.

Troy R. King, Montgomery, AL, for Amicus Governor Riley.

Edward Lawrence White, III, Thomas Moore Law Ctr., Ann Arbor, MI, for Amicus Thomas Moore Law Ctr.

Robert K. Skolrood, Scoggin & Skolrood Law Firm, Roanoke, VA, for Amicus Wallbuilders Inc.

K. Hollyn Hollman, Washington, DC, for Amicus Alabama Clergy.

John C. Eastman, c/o Chapman Univ. School of Law, Orange, CA, for Amicus Claremont Institute Ctr. for Constitutional.

Benjamin F. Holt, Washington, DC, for Amicus American-Arab Anti-Discrimination Committee.

Steven K. Green, American United, Salem, OR, for Amicus Legal Historians & Law Scholars.

James Michael Johnson, Shreveport, LA, Robert Benjamin Wolinsky, Washington, DC, for Amicus Curiae.

Appeals from the United States District Court for the Middle District of Alabama.

Before EDMONDSON, Chief Judge, CARNES, Circuit Judge, and STORY,^*District Judge.

CARNES, Circuit Judge:

The Chief Justice of the Alabama Supreme Court installed a two-and-one-half ton monument to the Ten Commandments as the centerpiece of the rotunda in the Alabama State Judicial Building.He did so in order to remind all Alabama citizens of, among other things, his belief in the sovereignty of the Judeo-Christian God over both the state and the church.And he rejected a request to permit a monument displaying a historically significant speech in the same space on the grounds that "[t]he placement of a speech of any man alongside the revealed law of God would tend in consequence to diminish the very purpose of the Ten Commandments monument."Glassroth v. Moore,229 F.Supp.2d 1290, 1297(M.D.Ala.2002).

The monument and its placement in the rotunda create the impression of being in the presence of something holy and sacred, causing some building employees and visitors to consider the monument an appropriate and inviting place for prayer.Three attorneys who do not consider the monument appropriate at all and who do not share the Chief Justice's religious beliefs brought two separate lawsuits to have the monument taken out.Agreeing with them that it violated the Establishment Clause of the First Amendment, the district court ordered the monument removed.Glassroth,229 F.Supp.2d at 1319;Glassroth v. Moore,242 F.Supp.2d 1067(M.D.Ala.2002).The Chief Justice appealed.We affirm.

I.

Because "[i]n religious-symbols cases, context is the touchstone,"King v. Richmond County,331 F.3d 1271, 1282, slip op. at 2552(11th Cir.2003), we set out the relevant facts in some detail, most of which are pulled from the district court's opinion, but a few of which we have drawn from undisputed testimony or other evidence in the record.

Chief Justice Moore began his judicial career as a judge on the Circuit Court of Etowah County, Alabama.After taking office he hung a hand-carved, wooden plaque depicting the Ten Commandments behind the bench in his courtroom and routinely invited clergy to lead prayer at jury organizing sessions.Those actions generated two high-profile lawsuits in 1995 based on the Establishment Clause, one filed by a nonprofit organization seeking an injunction and the other brought by the State of Alabama seeking a declaratory judgment that then-Judge Moore's actions were not unconstitutional.Both suits were dismissed on justiciability grounds.Ala. Freethought Ass'n v. Moore,893 F.Supp. 1522(N.D.Ala.1995);Alabama ex rel. James v. ACLU,711 So.2d 952(Ala.1998);seeGlassroth,229 F.Supp.2d at 1293-94.

During his campaign for the Chief Justice position in the November 2000 election then-Judge Moore's campaign committee, capitalizing on name recognition from the lawsuits, decided to refer to him as the "Ten Commandments Judge."Although the Chief Justice says he never described himself that way, he did not disagree with his campaign committee's decision.As a result, most of his campaign materials, including billboards, television and radio commercials, telephone scripts, and mailings, described him as the "Ten Commandments Judge" or otherwise referred to the Ten Commandments.The central platform of his campaign was a promise "to restore the moral foundation of law."Glassroth,229 F.Supp.2d at 1294.

After he was elected, Chief Justice Moore fulfilled his campaign promise by installing the Ten Commandments monument in the rotunda of the Alabama State Judicial Building.Id. at 1294, 1303.That building houses the Alabama Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, the state law library, and the state's Administrative Office of the Courts.The Chief Justice, as administrative head of the Alabama judicial system and as lessee of the Judicial Building, has final authority over the decoration of the rotunda and whether to put any displays in the building.SeeAla. Const. Amend. 328, § 6.10;Ala.Code § 41-10-275.Chief Justice Moore placed the monument in the rotunda of the Judicial Building without the advance approval or even knowledge of any one of the other eight justices of the Alabama Supreme Court.All decisions regarding it were made by him.Glassroth,229 F.Supp.2d at 1294.He did not use any government funds in creating or installing the monument.Id.

Thousands of people enter the Judicial Building each year.In addition to attorneys, parties, judges, and employees, every fourth grader in the state is brought on a tour of the building as part of a field trip to the state capital.No one who enters the building through the main entrance can miss the monument.It is in the rotunda, directly across from the main entrance, in front of a plate-glass window with a courtyard and waterfall behind it.After entering the building, members of the public must pass through the rotunda to access the public elevator or stairs, to enter the law library, or to use the public restrooms.A person walking to the elevator, stairs, or restroom will pass within ten to twenty feet of the monument.The Chief Justice chose the location of the monument so that everyone visiting the Judicial Building would see it.Id.

The 5280-pound granite monument is "approximately three feet wide by three feet deep by four feet tall."Id.Two tablets with rounded tops are carved into the sloping top of the monument.Excerpts from Exodus 20:2-17 of the King James Version of the Holy Bible, the Ten Commandments, are chiseled into the tablets.The left one reads:

I AM THE LORD THY GOD

THOU SHALT HAVE NO OTHER GODS BEFORE ME

THOU SHALT NOT MAKE UNTO THEE ANY GRAVEN IMAGE

THOU SHALT NOT TAKE THE NAME OF THE LORD THY GOD IN VAIN

REMEMBER THE SABBATH DAY, TO KEEP IT HOLY

The right one reads:

HONOUR THY FATHER AND THY MOTHER

THOU SHALT NOT KILL

THOU SHALT NOT COMMIT ADULTERY

THOU SHALT NOT STEAL

THOU SHALT NOT BEAR FALSE WITNESS

THOU SHALT NOT COVET¹Glassroth, 229 F.Supp.2d at 1294-95;id. at 1320(App. A — photograph of the monument).

Below the Ten Commandments, each side of the monument contains one large-sized and several smaller-sized quotations.The quotations are excerpted from various historical documents and authorities.They are described and set out in full in the district court's opinion.Id. at 1295;id. at 1320-21(App. B — providing full quotations of the monument's text).The quotations from secular sources were placed below the Ten Commandments because of Chief Justice Moore's belief that the words of mere men could not be placed on the same plane as the Word of God.Id. at 1295.

"Due to the slope of the monument's top and the religious appearance of the tablets, the tablets call to mind an open Bible resting on a lectern."Id.The appearance and location of the monument itself give one "the sense of being in the presence of something not just valued and revered (such as an historical document) but also holy and sacred."Id.Employees and visitors to the building consider it an appropriate and inviting place for prayer.Id.

The monument was installed after the close of business during the evening of July 31, 2001.The Chief Justice has explained that it was done at night to avoid interrupting the normal business of the building.The installation of the monument that night was filmed by Coral Ridge Ministries, an evangelical Christian media outreach organization.Id. at 1294.The organization has used its exclusive footage of the installation to raise funds for its own purpose and for Chief Justice Moore's legal defense, which it has underwritten.Id. at 1304 n. 2.

At the public unveiling of the monument the day after its installation, Chief Justice Moore delivered a speech commemorating the event, and in that speech he talked about why he had placed the monument, which he described as one "depicting the moral foundation of our law," where he did.He explained that the location of the monument was "fitting and proper" because:

this monument will serve to remind the appellate courts and judges of the circuit and district courts of this state, the members of the bar who appear before them, as well as the people who visit the Alabama Judicial Building, of the truth...