Harvey v. Cobb County, Ga.

• Decision Date: 13 January 1993
• Docket Number: Civ. A. No. 1:92-cv-45-MHS.
• Citation: 811 F. Supp. 669
• Parties: Bruce S. HARVEY and James D. Cunningham, Plaintiffs, v. COBB COUNTY, GEORGIA, Defendant.
• Court: U.S. District Court — Northern District of Georgia

811 F. Supp. 669

Bruce S. HARVEY and James D. Cunningham, Plaintiffs, v. COBB COUNTY, GEORGIA, Defendant.

Civ. A. No. 1:92-cv-45-MHS.

United States District Court, N.D. Georgia, Atlanta Division.

January 13, 1993.

Michael Raymond Hauptman, Hauptman & Rothstein, Marshall Lewis Cohen, Office of Marshall L. Cohen, Gerald R. Weber, American Civil Liberties Union, Atlanta, GA, for plaintiffs.

Fred Douglas Bentley, Jr., Jerry Lovvorn Gentry, Carol Awtrey Callaway, Office of Cobb County Atty., Law Dept., Marietta, GA, for defendant.

ORDER

SHOOB, Senior District Judge.

This case requires the Court to decide whether a framed panel of the Ten Commandments and the so-called Great Commandment displayed in a county court-house building violates the Establishment Clause of the First Amendment of the United States Constitution. That decision affects not only the litigants in this case but more broadly our concept of full religious freedom — to believe or not to believe, to participate or not to participate, as one pleases — and whether we truly insist, as did Thomas Jefferson in 1802, that there must be a "wall of separation between church and State."

For the reasons stated below, the Court concludes that the Ten Commandments and the Great Commandment are essentially religious texts in the Jewish and Christian traditions and that the display standing alone in a county courthouse violates the Establishment Clause of the First Amendment of the United States Constitution. This order, however, will be stayed for four months to give defendant an opportunity to include the panel in a larger display of non-religious, historical items, which may bring it within constitutional parameters.

To those who have asked the Court by phone calls and letters "to save the Ten Commandments," the Court points out that the Ten Commandments are not in peril. They may be displayed in every church, synagogue, temple, mosque, home, and storefront. They may be displayed on lawns and in corporate board rooms. Where this precious gift cannot, and should not, be displayed as a religious text is on government property. For any erosion of the Bill of Rights — restraints voluntarily imposed by the majority to protect the rights of the minority — will inevitably produce prejudice and persecution.

In January 1992, plaintiffs¹ brought suit against defendant Cobb County, seeking declaratory and injunctive relief for the County's acquisition, installation, display, and maintenance of a framed panel of the Ten Commandments and the Great Commandment displayed in the Cobb County State Court Building. Plaintiffs contend that the displayed panel violates the First Amendment of the United States Constitution² and the comparable provision of the Georgia Constitution³ and also violates their civil rights under 42 U.S.C. §§ 1983, 1988. In April 1992, the Court consolidated the preliminary injunction hearing with the trial of this matter under Federal Rule of Civil Procedure 65(a)(2). Based on the evidence at trial and the parties' proposed findings of fact and conclusions of law, the Court enters the following findings of fact and conclusions of law under Federal Rule of Civil Procedure 52(a).

I. FINDINGS OF FACT

1. The display in this case is a three-by-five-foot framed panel that hangs alone in an alcove above a marble bench near the Traffic Court courtrooms and the Clerk's Office on the first floor of the Cobb County State Court Building, which is part of the Cobb County Judicial Complex.

2. The panel contains the following language:

THE TEN COMMANDMENTS

1. Thou shalt have no other gods before me.

2. Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth: thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me; and shewing mercy unto thousands of them that love me, and keep my commandments.

3. Thou shalt not take the name of the LORD thy God in vain; for the LORD will not hold him guiltless that taketh his name in vain.

4. Remember the Sabbath day, to keep it holy. Six days shalt thou labour, and do all thy work: but the seventh day is the Sabbath of the LORD thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates: for six days the LORD made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the LORD blessed the Sabbath day, and hallowed it.

5. Honor thy father and thy mother: that thy days may be long upon the land which the LORD thy God giveth thee.

6. Thou shalt not kill.

7. Thou shalt not commit adultery.

8. Thou shalt not steal.

9. Thou shalt not bear false witness against thy neighbor.

10. Thou shalt not covet thy neighbor's house, thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor anything that is thy neighbor's.

Jesus said: 1. Thou shalt love the LORD thy GOD with all thy heart, and with all thy soul, and with all thy mind. 2. Thou shalt love thy neighbor as thy self. On these two commandments hang all the law and the prophets.

3. At trial, Rabbi Shalom Lewis of Synagogue Etz Chaim in Cobb County testified that

the "Ten Commandments" that appears parallels the Jewish version of the "Ten Commandments", which comes, of course, from the Bible, the Old Testament, as referred to within the Christian community. The Sixth Commandment, though, is a mistranslation. The translation here says "Thou shalt not kill." That is not what the text says in the original Hebrew, which says "Thou shalt not murder."

The second part of the text, ... the statements attributed to Jesus, ... appear in the New Testament, ... but ... originally appear in the Bible in the Five Books of Moses. The first quote, ... "You shall love the Lord your God with all your heart," is one of the fundamental Jewish creeds found in Deuteronomy. The second half of that, which is the quote "Love your neighbor as yourself," comes from Leviticus, Chapter 19. And the third part ... is actually a paraphrase borrowed from Rabbinic literature by Rabbi Hillel, which precedes even the birth of Jesus.

(Trial Tr. at 74-75.)

4. Rabbi Lewis's unchallenged testimony was supported by the testimony of The Reverend James Houston Wheeler, an ordained minister of the United Church of Christ. Reverend Wheeler also testified that, in the Christian tradition, Jesus is considered the Messiah, the Christ, a fulfillment of a promise made in the Bible or Old Testament, and his words are the words of God. (Trial Tr. at 90.)

5. Leif Carter, lawyer and professor of political science at the University of Georgia, and George Beggs, dean of the School of Arts and Behavioral Sciences and professor of political science at Kennesaw State College, both testified that the Ten Commandments are one of many sectarian and non-sectarian influences on the formation of Western law in general and the United States Constitution in particular. Examples of other influences are the Code of Hammurabi, the Justinian Code, and the philosophies of Plato, St. Augustine, and St. Thomas Aquinas.

6. The following persons testified about the panel itself: William Cox, Custodian Coordinator of Cobb County; Mack Henderson, Cobb County Manager; Herbert McCollum, former Commissioner of Cobb County; and Conley Ingram, attorney and former Justice of the Supreme Court of Georgia. They stated that the panel was donated to Cobb County by the Gardner family sometime before 1939. Between 1939 and 1967, the panel hung on the outside wall of the old Cobb County Courthouse. In 1967, the panel, along with other items, was moved from the old Courthouse to its present location by Cobb County inmates, who are housed, fed, and transported by Cobb County. During the past twenty-five years, the panel has, on several occasions, been dusted by a night cleaning crew consisting of Cobb County inmates and a supervisor employed by Cobb County. The crew once removed and then replaced the panel to clean the heavy buildup of nicotine around and behind the panel.

7. On July 15, 1991, plaintiffs, through their counsel, wrote to Dr. Phillip Secrist, Chairman of the Cobb County Board of Commissioners, requesting removal of the panel on the ground that its display in the State Court Building violated the Establishment Clause.

8. On July 19, 1991, Mack Henderson, Cobb County Manager, responded to the letter, stating that the Board of Commissioners was against the removal of the panel and had recently voted to support the continued display of the panel in the State Court Building.

9. On January 6, 1992, plaintiffs brought the present action against Cobb County and moved for a temporary restraining order. On January 9, 1992, following a hearing, the Court denied plaintiffs' motion for a temporary restraining order, expressing concern about plaintiffs' standing to maintain this action. The trial of this action, advanced and consolidated with the hearing of plaintiffs' motion for a preliminary injunction under Rule 65(a)(2), was held on April 23, 1992.

10. Plaintiff Harvey is employed as a criminal defense attorney with an office in Fulton County, Georgia, in the City of Atlanta, and has a state-wide practice. During the past two years, approximately fifteen percent of Harvey's practice has been in Cobb County, and approximately five percent of this has been in State Court. During the past year, Harvey has appeared in five or six cases in Traffic Court and presently has one case pending in Traffic Court. Harvey has seen or passed by the panel each time that he has been in the State Court Building. He neither avoids nor seeks out the panel, though he is often near the panel, talking to...