Green v. Haskell County Board of Com'Rs

• Decision Date: 08 June 2009
• Docket Number: No. 06-7098.,06-7098.
• Citation: 568 F.3d 784
• Parties: James W. GREEN, an individual; American Civil Liberties Union of Oklahoma, a non-profit corporation, Plaintiffs-Appellants, v. HASKELL COUNTY BOARD OF COMMISSIONERS, also known as Board of County Commissioners of Haskell County, Oklahoma; Kenny Short, in his official capacity as Chairman of the Haskell County Board of Commissioners, Defendants-Appellees, Mainstream Baptist Network; Oklahoma Mainstream Baptists; Americans United for Separation of Church and State; American Center for Law and Justice; The National Legal Foundation; American Legion # 182; and Foundation for Moral Law, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

568 F.3d 784

James W. GREEN, an individual; American Civil Liberties Union of Oklahoma, a non-profit corporation, Plaintiffs-Appellants, v. HASKELL COUNTY BOARD OF COMMISSIONERS, also known as Board of County Commissioners of Haskell County, Oklahoma; Kenny Short, in his official capacity as Chairman of the Haskell County Board of Commissioners, Defendants-Appellees, Mainstream Baptist Network; Oklahoma Mainstream Baptists; Americans United for Separation of Church and State; American Center for Law and Justice; The National Legal Foundation; American Legion # 182; and Foundation for Moral Law, Amici Curiae.

No. 06-7098.

United States Court of Appeals, Tenth Circuit.

June 8, 2009.

Daniel Mach, American Civil Liberties Union Foundation, Washington, D.C. (Lane Dilg, American Civil Liberties Union Foundation, Washington, D.C.; Micheal Salem, Salem Law Offices, Norman, OK; Tina L. Izadi, American Civil Liberties Union of Oklahoma Foundation, Oklahoma City, OK, with him on the briefs), for Plaintiffs-Appellants.

Kevin H. Theriot (Joel L. Oster, with him on the brief), Alliance Defense Fund, Leawood, KS, for Defendants-Appellees.

Harry F. Tepker, University of Oklahoma Law Center, Norman, OK, filed an amicus curiae brief for Mainstream Baptist Network and Oklahoma Mainstream Baptists in support of Plaintiffs-Appellants.

Ayesha N. Khan, Richard B. Katskee, and Heather L. Weaver, Americans United for Separation of Church and State, Washington, D.C., filed an amicus curiae brief for Americans United for Separation of Church and State in support of Plaintiffs-Appellants.

Jay Alan Sekulow, American Center for Law & Justice, Washington, D.C.; Francis J. Manion and Geoffrey R. Surtees, American Center for Law & Justice, New Hope, KY, filed an amicus curiae brief for American Center for Law and Justice in support of Defendants-Appellees.

Philip B. Onderdonk Jr., The American Legion, Indianapolis, IN; Kelly J. Shackelford and Hiram S. Sasser III, Liberty Legal Institute, Plano, TX, filed an amicus curiae brief for The American Legion # 182 in support of Defendants-Appellees.

Steven W. Fitschen and Barry C. Hodge, Virginia Beach, VA, filed an amicus curiae brief for The National Legal Foundation in support of Defendants-Appellees.

Roy S. Moore, Gregory M. Jones, and Benjamin D. DuPré, Foundation for Moral Law, Montgomery, AL, filed an amicus curiae brief for Foundation for Moral Law in support of Defendants-Appellees.

Before HARTZ, O'BRIEN, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Defendant-Appellee Haskell County Board of Commissioners approved a constituent's request to erect a monument displaying the Ten Commandments (hereinafter the "Monument") on the lawn of the county courthouse in Stigler, Oklahoma. Plaintiffs-Appellants James Green, a Haskell County resident, and the American Civil Liberties Union ("ACLU") of Oklahoma filed suit against the Haskell County Board of Commissioners and Kenny Short, in his official capacity as chairman of that board, (collectively "the Board") under 42 U.S.C. § 1983, alleging a violation of the Establishment Clause of the First Amendment. After a bench trial, the district court ruled in favor of the Board, finding no constitutional violation in the Monument's placement on the courthouse lawn.

Exercising our jurisdiction under 28 U.S.C. § 1291,¹ we hold that, under the unique circumstances presented here, the Establishment Clause was violated because the reasonable observer would view the Monument as having the impermissible principal or primary effect of endorsing religion. Accordingly, we REVERSE the district court's order.

I. BACKGROUND²

Haskell County has a population of about 15,000 people. Approximately 2500 people live in the county seat, Stigler. The Haskell County courthouse is located in Stigler. It sits in the middle of approximately one square block of county property. The courthouse contains the courts, the offices of numerous government officials, and county offices where citizens can perform a variety of activities such as voting, paying taxes, and accessing public records.

The Haskell County Historical Society occupies a log cabin in the northeast corner of the property. Outside of the courthouse are monuments of various sorts, most of which were paid for and erected by private citizens. One sidewalk contains personal message bricks. Two benches are dedicated to and inscribed by the Classes of 1954 and 1955, respectively. The largest monument—honoring Haskell County citizens who died in World Wars I and II—sits in the middle of the lawn. In front of it are smaller monuments honoring those killed in action in Vietnam and Korea. A small rose garden with a birdbath sits behind the World Wars monument. A monument honoring the Choctaw Nation and a monument honoring all unmarked graves in Haskell County also are situated on the courthouse lawn.

At issue is a recent addition to the lawn—a block of stone that is approximately eight feet tall and three feet wide, with the Ten Commandments inscribed on one side and the Mayflower Compact on the other. Photographs of the two sides of the Monument are appended to this opinion as Appendix A (Ten Commandments) and Appendix B (Mayflower Compact). The side facing the street reads:

The Ten Commandments

I Thou shalt have no other gods before me.

II Thou shalt not make unto thee any graven image.

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

IV Thou shalt remember the sabbath day and keep it holy.

V Thou shalt honor thy father and mother.

VI Thou shalt not kill.

VII Thou shalt not commit adultry. [sic]

VIII Thou shalt not steal.

IX Thou shalt not bear false witness against thy neighbor.

X Thou shalt not covet thy neighbor's house.

                                                    Exodus 20
                

App. at 1569.

The opposite side of the Monument reads, in all capital letters:

The Mayflower Compact

November 11, 1620

In the name of God, Amen.

We whose names are underwritten, the loyal subjects of our dread sovereign Lord, King James by the grace of God, of Great Britain, France and Ireland king, defender of the faith, ect. [sic], having undertaken, for the glory of God, and advancement of the Christian faith, and honor of our king and country, a voyage to plant the first colony in the Northern parts of Virginia, do by these presents solemnly and mutually in the presence of God, and one of another, covenant and combine ourselves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions, and offices, from time to time, as shall be thought most meet and convenient for the general good of the colony, unto which we promise all due submission and obedience.

In witness whereof we have hereunder subscribed our names at Cape-Cod the 11 of November, in the year of the reign of our sovereign lord, King James, of England, France, and Ireland the eighteenth, and of Scotland the fifty-fourth. Anno Domini 1620.

App. at 1566. At the base of the Monument is a notation added after the start of this litigation: "Erected by Citizens of Haskell County." App. at 1085; see Green, 450 F.Supp.2d at 1277-78.

The Monument's saga began when Michael Bush, a local citizen who is employed as a construction worker and part-time minister, appeared at a regularly scheduled Board meeting to seek approval for placing a Ten Commandments monument on the courthouse lawn. At that time, the Board consisted of three commissioners. After a brief discussion, they approved Mr. Bush's request. The relevant portion of the meeting's minutes reads: "The Board met with Mike Bush to discuss getting a monument with the 10 Commandments on it to put on the courthouse lawn. The Board agreed that Mike could go ahead and have the monument made and Mike is taking care of all the expense." App. at 1388.

Mr. Bush recalled telling the Board that "the Lord had burdened [his] heart" to create the Monument and that he would be responsible for raising the funds and getting the Monument. App. at 1013. He did not present the Board with any diagram of his proposal, although he did describe its proposed size and that it would depict the Ten Commandments. Mr. Bush did not recall being asked any questions before the Board approved his request. One of the commissioners recalled discussing the historical aspects of the Monument with the other commissioners but could not recall any more specific contents of that discussion. Either prior to or shortly after the vote, the Board consulted with the County's attorney, who informed them that a decision to approve the Monument could result in a few legal "bumps." App. at 516, 1148.

After receiving approval from the Board, Mr. Bush raised the necessary funds through religious groups in the community. With the assistance of a friend, Mr. Bush decided on the wording of the Ten Commandments to appear on the Monument, condensing and paraphrasing from the King James Version of the Bible.³ At some point in the process of designing the Monument, Mr. Bush decided to include the Mayflower Compact as well. As it relates to the Ten Commandments, the Board did not review or approve Mr. Bush's design of the Monument or the version of the Ten Commandments that he selected to be inscribed on it. With regard to the Mayflower Compact, the Board apparently was not apprised of Mr. Bush's plan to add it to the Monument and did not authorize him to do so.⁴

The Board, however, did select the location for the monument—in line with several of the other monuments on the lawn, approximately twenty-five feet away from Highway 9 (the main thoroughfare through town, which runs in front of the courthouse), five feet over from the unmarked graves monument, and fifty feet from the World Wars monument in the center of the lawn. The location does not appear to be "a clearly high traffic area" and...