IN Civil Liberties Union v. O'Bannon, No. 00-3011

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore Flaum, Chief Judge, and Bauer and Coffey; Bauer; Coffey
Citation259 F.3d 766
Parties(7th Cir. 2001) Indiana Civil Liberties Union, Joan Laskowski, Alice Bennett, et al., Plaintiffs-Appellees, v. Frank O'Bannon, Governor of Indiana, Defendant-Appellant
Docket NumberNo. 00-3011
Decision Date27 July 2001

Page 766

259 F.3d 766 (7th Cir. 2001)
Indiana Civil Liberties Union, Joan Laskowski, Alice Bennett, et al., Plaintiffs-Appellees,
v.
Frank O'Bannon, Governor of Indiana, Defendant-Appellant.
No. 00-3011
In the United States Court of Appeals For the Seventh Circuit
Argued January 9, 2001
Decided July 27, 2001

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 00 C 811--Sarah Evans Barker, Judge.

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Before Flaum, Chief Judge, and Bauer and Coffey, Circuit Judges.

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Bauer, Circuit Judge.

This case comes to us upon the district court's grant of a preliminary injunction. On appeal, the dispute concerns whether plaintiffs are likely to succeed on the merits. Akin to our recent decision in Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000),1 we must determine whether a monument to be placed on state government property will violate the Establishment Clause of the First Amendment to the United States Constitution made applicable to the states through the Fourteenth Amendment. "This 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," Books, 235 F.3d at 294, and then apply the test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971). We have completed this work and affirm the district court's entrance of the preliminary injunction pending resolution on the merits.

BACKGROUND

As detailed in Books, 235 F.3d at 294- 95, the Fraternal Order of the Eagles donated plaques inscribed with a version of the Ten Commandments (developed by representatives of Judaism, Protestantism, and Catholicism) to communities across the United States during the 1950s. In 1958, one of the plaques was erected on the Indiana Statehouse grounds in downtown Indianapolis, where it stood until smashed by a vandal in 1991. Indiana State Representative Brent Steele arranged for the creation of a new monument to replace the destroyed plaque. The Indiana Limestone Institute generously agreed to donate both limestone and labor for this purpose. Steele, also an attorney, surmised that it would be legally prudent if, in addition to the Ten Commandments, the new monument displayed historical texts. The texts he chose were the Bill of Rights from the United States Constitution and the Preamble to the 1851 Indiana Constitution.

The planned monument consists of two pieces of limestone--a four-sided block resting upon a rectangular base-- and will weigh 11,500 pounds. The two wider sides of the four-sided block are carved into rounded arcs at the top, which resemble tablets, a form typically used in artistic depictions of the stone tablets delivered by Moses upon returning from Mt. Sinai. The monument will stand seven feet tall; six feet, seven inches wide; and four feet, seven inches deep. On one of the wide surfaces, the following version of the Ten Commandments will be engraved in one inch, all capital lettering:

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

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IV. Remember the Sabbath day to keep it holy

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

VI. Thou shalt not kill

VII. Thou shalt not commit adultery

VIII. Thou shalt not steal

IX. Thou shalt not bear false witness against thy neighbor

X. Thou shalt not covet thy neighbor's house or wife or anything that is thy neighbor's

The other wide surface will display the Bill of Rights in five-eighths inch, all capital lettering. On one of the smaller sides the 1851 Indiana Constitution Preamble will be inscribed, which states:

To the end, that justice be established, public order maintained, and liberty perpetuated: We, the People of the State of Indiana, grateful to Almighty God for the free exercise of the right to choose our own form of government, do ordain this Constitution.

The 1851 Preamble will not be clearly identified as such. The other small side will read:

Gift of the Indiana Limestone Industry-- 2000 A.D.

This monument replaces one donated by the Aeries and Auxiliaries of the Indiana Fraternal Order of the Eagles on October 25, 1958

The record is not clear as to the exact size of the lettering for the 1851 Preamble and the dedication.

The Statehouse park-like grounds span almost two acres and are home to many Indiana government buildings, including the Capitol Building, the Governor's office, the General Assembly, the Indiana Supreme Court, the Indiana Court of Appeals, and other state offices. The grounds are surrounded by Ohio Street to the north, Washington Street to the south, Capitol Avenue to the east, and Senate Avenue to the west. There are numerous monuments currently on the grounds, including two monuments honoring the civil engineering of the National Road (U.S. Highway 40), a marker honoring the women of Indiana, two friezes depicting Civil War scenes, a marker describing the Statehouse's history, and statues of Christopher Columbus, George Washington, a coal miner, and Indiana Governors Thomas A. Hendricks and Oliver H.P. Morton. The grounds also showcase seven dedicated trees. The planned site for the monument at issue in this case is the southwest corner of the grounds, about forty-one feet from one of the trees and ninety-two feet from the National Road monument, although precisely where and in what direction it will face is as of yet undetermined.

In May of 2000, plaintiffs filed an action under 42 U.S.C. sec. 1983, claiming that acceptance of the monument and the plan to erect it on the grounds of the Indiana Statehouse was state action that violated the Establishment Clause. On July 28, 2000, the district court granted plaintiffs' motion for a preliminary injunction precluding the State from erecting the monument pending resolution on the merits. See Indiana Civil Liberties Union v. O'Bannon, 110 F. Supp. 2d 842 (S.D. Ind. 2000).2 The district court held that the

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plaintiffs had demonstrated a likelihood of success on the merits by showing that the state action violated both of the first two prongs of the Lemon test.

Under the first prong of the Lemon test, the district court reasoned that the State's purpose in displaying the monument was to advance religion because the State had not shown a historical link between most of the Ten Commandments and the ideals of government and the legal system, that the monument's tablet-shaped design was religious in nature, the Ten Commandments would be displayed apart from the other texts, and there was no explanation on the monument that the Ten Commandments was being displayed for its historical significance. Under the second prong, the district court reiterated that the content, shape, size, design, permanence, and location at the seat of Indiana's government, would lead a reasonable observer to believe that the Ten Commandments were "marked with the stamp of government approval."

The State's appeal asks for the vacation of the preliminary injunction because the plaintiffs have not shown that they are likely to succeed on the merits.

DISCUSSION

A preliminary injunction is an extraordinary remedy intended to preserve the status quo until the merits of a case may be resolved. A preliminary injunction may be issued only if the moving party demonstrates some likelihood of success on the merits, an inadequate remedy at law, and irreparable harm if denied. If these elements are demonstrated, the court must balance the irreparable harm the nonmovant will suffer if relief is granted and the irreparable harm to the movant if relief is denied. The court must also consider the public interest in either the grant or denial of the relief. When a district court grants a preliminary injunction, we review conclusions of law de novo and findings of fact for clear error while giving substantial deference to the district court's discretionary acts of weighing evidence or balancing equitable factors. See Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999).

Deciding the merits of this case involves the application of the Lemon test. Under Lemon, the Establishment Clause is violated if any of the following are found: (1) the state action does not have a secular purpose; (2) the primary effect of the state action is the advancement or inhibition of religion; or (3) the state action fosters excessive entanglement with religion. See 403 U.S. at 612-13. In this case, the parties only invoke the first two prongs, which have been refined and dubbed the "endorsement test." See Books, 235 F.3d at 301. Under the endorsement test we focus on whether the state's action has the purpose or effect of conveying a message of endorsement or disapproval of religion. See id. at 302.

I. Secular Purpose

Under the first prong of the Lemon test, we ask whether the State's actual purpose in planning to erect this monument on the Statehouse grounds is to advance or inhibit religion. See id. We have recognized that the Ten Commandments is a religious and sacred text that transcends secular ethical or moral concerns. See id. This is so in part because its very text commands the reader to worship only the Lord God, to avoid idolatry, to not use the Lord's name in vain, and to observe the Sabbath. These particular commandments are wholly

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religious in nature, and serve no conceivable secular function. Yet, we have also recognized that the Ten Commandments "can no doubt be presented by the government as playing . . . a role in our civic order." Id. at 302-03 (recognizing the secular nature of the frieze on the wall of the United States Supreme Court depicting Mosesholding the Ten Commandments alongside other "great lawgivers" or the secular use of the Ten Commandments in public schools to study history, civilization, ethics, or comparative...

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88 practice notes
  • Hodgkins v. Peterson, IP 01-1032-C T/K.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 6, 2001
    ...Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (quotation omitted); see also Ind. Civil Liberties Union v. O'Bannon, 259 F.3d 766, 770 (7th Cir.2001) ("A preliminary injunction is an extraordinary remedy[.]"), reh'g en banc denied. A party seeking a preliminary injunct......
  • E.E.O.C. v. Preferred Management Corp., No. IP98-1697-C-B/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 1, 2002
    ...must not foster an excessive government entanglement with religion." 403 U.S. at 612-13, 91 S.Ct. at 2111. See I.C.L.U. v. O'Bannon, 259 F.3d 766, 770 (7th Cir.2001); Books v. City of Elkhart, 235 F.3d 292, 301 (7th Preferred concedes that the first two Lemon criteria are satisfied here. It......
  • Demmon v. Loudon County Public Schools, No. CIV.A. 1:03cv365.
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    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • October 15, 2004
    ...praise to God that is the creche's religious message." Id. at 600, 109 S.Ct. 3086; see also Indiana Civil Liberties Union v. O'Bannon, 259 F.3d 766, 772-73 (7th Cir.2001) (holding that a six-ton limestone monument of the Ten Commandments located on the statehouse grounds conveyed to a reaso......
  • Lambeth v. Board of Com'Rs of Davidson County, Nc, No. 1:03 CV 00592.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • May 25, 2004
    ...256 & n. 4 Page 695 (3rd Cir.2003) (Ten Commandments plaque on front facade of courthouse); Indiana Civil Liberties Union v. O'Bannon, 259 F.3d 766, 770 (7th Cir.2001) (Ten Commandments monument on statehouse grounds); Alvarado v. City of San Jose, 94 F.3d 1223, 1231 (9th Cir.1996) (sculptu......
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86 cases
  • Hodgkins v. Peterson, IP 01-1032-C T/K.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 6, 2001
    ...Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (quotation omitted); see also Ind. Civil Liberties Union v. O'Bannon, 259 F.3d 766, 770 (7th Cir.2001) ("A preliminary injunction is an extraordinary remedy[.]"), reh'g en banc denied. A party seeking a preliminary injunct......
  • E.E.O.C. v. Preferred Management Corp., No. IP98-1697-C-B/S.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 1, 2002
    ...must not foster an excessive government entanglement with religion." 403 U.S. at 612-13, 91 S.Ct. at 2111. See I.C.L.U. v. O'Bannon, 259 F.3d 766, 770 (7th Cir.2001); Books v. City of Elkhart, 235 F.3d 292, 301 (7th Preferred concedes that the first two Lemon criteria are satisfied here. It......
  • Lambeth v. Board of Com'Rs of Davidson County, Nc, No. 1:03 CV 00592.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • May 25, 2004
    ...256 & n. 4 Page 695 (3rd Cir.2003) (Ten Commandments plaque on front facade of courthouse); Indiana Civil Liberties Union v. O'Bannon, 259 F.3d 766, 770 (7th Cir.2001) (Ten Commandments monument on statehouse grounds); Alvarado v. City of San Jose, 94 F.3d 1223, 1231 (9th Cir.1996) (sculptu......
  • Mercier v. City of La Crosse, No. 02-C-376-C.
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • July 14, 2003
    ...the primary effect of advancing or inhibiting religion, which is the second part of Lemon. See Indiana Civil Liberties Union v. O'Bannon, 259 F.3d 766 (7th Cir. 2001); Freedom from Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487, 493 (7th Cir.2000). In addition, in recent case......
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