Indiana Civil Liberties Union Inc. v. O'Bannon

• Decision Date: 28 July 2000
• Docket Number: No. IP00-0811-C-B/S.,IP00-0811-C-B/S.
• Citation: 110 F.Supp.2d 842
• Parties: INDIANA CIVIL LIBERTIES UNION INC., et al., Plaintiffs, v. Frank O'BANNON, et al., Defendants.
• Court: U.S. District Court — Southern District of Indiana

110 F.Supp.2d 842

INDIANA CIVIL LIBERTIES UNION INC., et al., Plaintiffs, v. Frank O'BANNON, et al., Defendants.

No. IP00-0811-C-B/S.

United States District Court, S.D. Indiana, Indianapolis Division.

July 28, 2000.

Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, IN, for Plaintiffs.

Geoffrey Slaughter, Special Counsel to Attorney General of Indiana, Indianapolis, IN, for Defendant.

ORDER GRANTING PRELIMINARY INJUNCTION

BARKER, Chief Judge.

Plaintiffs, Indiana Civil Liberties Union, Inc., et al. (collectively "ICLU"), move for a preliminary injunction seeking to prevent Defendants, Frank O'Bannon, et al. (collectively "Indiana" or "State"), from posting on the grounds of the Indiana Statehouse a monument containing, among other things, the Ten Commandments. For the reasons discussed below, we GRANT Plaintiffs' motion and preliminarily enjoin the State from proceeding to erect the proposed monument on the grounds of the Indiana Statehouse.

Background

The parties have entered a Stipulation of Facts ("Stip.") from which the majority of the following facts are gleaned. To the extent that we rely on one of the parties' other submissions, we abbreviate them as follows: Plaintiffs' Memorandum in Support of Motion for Preliminary Injunction ("ICLU Mem."); Defendants' Memorandum in Opposition to Motion for Preliminary Injunction ("Opp'n Mem."); and Plaintiffs' Reply Memorandum in Support of Motion for Preliminary Injunction ("ICLU Reply").

A. The Statehouse Grounds

The Indiana Statehouse is prominently positioned in downtown Indianapolis consisting of, in addition to the Capitol Building itself, a sizeable expanse of land stretching from Washington Street on the south, between Capitol and Senate Avenues, to Ohio Street on the north. See Stip. ¶ 3. The Statehouse contains the office of the Governor, the Indiana General Assembly, the Indiana Supreme Court and the chambers of its justices, the Indiana Court of Appeals and the chambers of some of its judges, as well as the offices of certain other Indiana constitutional and statutory officeholders. See id. ¶ 2. Immediately to the north of Washington Street is a 1.93 acre plot of park-like land on the grounds of the Statehouse, immediately in front of the south entrance to the Statehouse. See id. ¶ 4.

On the park-like lawn area, there are presently located, among other things: monuments honoring the national road and coal miners, as well as statues of George Washington, Christopher Columbus, Vice President Thomas A. Hendricks, and Governor Oliver P. Morton; in addition there are a number of ornamental trees marked with placards honoring various former governors of Indiana. See Stip., Ex. 2 ("Map") (map of all of the monuments on the statehouse grounds including their photographs). The southwest area of the lawn contains currently only a single tree marked with a placard honoring former Governor Schricker and a four-feet tall by two-feet wide monument noting the historic significance of the National Road, U.S. 40, which formerly ran along Washington Street. See id. ¶ 5. The proposed monument ("Monument") containing a version of the Ten Commandments, the Preamble of the 1851 Indiana Constitution, and the Bill of Rights is intended to be placed on this southwest section of the lawn, near Senate avenue, though the precise spot has not been identified to us by the parties. See Stip. ¶ 28. The Monument as designed will be a four-sided structure, measuring approximately seven feet high at its highest point, six-feet, seven-inches wide at its widest point, more than four-feet deep, and will be composed of two large blocks of Indiana limestone weighing almost 11,500 pounds. See id. ¶¶ 7, 10.

It is intended that the Monument will be erected in the approximate location of a former monument containing the Ten Commandments that, in 1958, had been donated by the Fraternal Order of the Eagles ("FOE") in 1958. See id. ¶¶ 24, 28. The prior Ten Commandments monument was toppled in 1991 in a series of acts of vandalism. See Stip. ¶¶ 24, 26; Stip., Ex. 1 ("Press Release"). Its exact location, and which direction it will face, are yet to be determined; however, the State indicated at oral argument that the Monument will be placed as closely as possible to the site of the former Ten Commandments monument. See Stip. ¶¶ 24, 28. The site of the former monument is within the triangular portion of grass shown on the Map as containing the tree dedicated to former Governor Schricker, approximately one-hundred-thirteen-feet north of the north edge of the Washington Street sidewalk, approximately eighty-three-feet south of the middle of the east-west walkway that touches the south side of the Statehouse, and approximately nineteen-feet east of the Senate Avenue sidewalk. See id. ¶¶ 34, 35. The location is also approximately forty-one-feet away from Governor Schricker's tree and ninety-two-feet away from the National Historic Civil Engineering Landmark. See id. ¶ 36. The monument honoring Christopher Columbus is approximately forty-three-feet north of the east-west sidewalk that touches the south side of the Statehouse. See id. ¶ 37. The State also represented at oral argument that the Monument will be at least fifteen-feet from any existing pathway and that no plans exist to create a path to it.

South of the Statehouse, five monuments and four dedicated trees currently stand; located west of the Statehouse are three monuments, one marker, and two dedicated trees. See Map.¹ To reiterate, only the Columbus statue, one of the National Road monuments, and a dedicated tree will be within ninety-two-feet of the proposed site of the Monument. See Stip. ¶¶ 35-37.

B. The Monument

The proposed Monument is being donated by the Indiana Limestone Institute, after having been enlisted by State Representative Brent Steele of Lawrence County ("State Representative Steele"). See Stip. ¶¶ 21-22; Opp'n Mem. at 4 (citing Deposition of Brent Steele ("Steele Dep.") at 8-10).

The State's brief details the history of the 1958 monument, given as a gift to the State by the FOE. See Opp'n Mem. at 2-4; Stip. ¶ 25.² The original monument contained the text of the Ten Commandments on a seven-feet tall, three-feet wide, and one-foot deep center tablet that was flanked by two smaller tablets (each of which was three-feet by three-feet, eight-inches) listing Indiana FOE lodge affiliates. See Opp'n Mem. at 2-3. The original monument was erected as part of a national campaign, initiated by a Minnesota juvenile court judge, as a way of addressing what he perceived to be a need for juveniles to have a "code of conduct," from which they could benefit by "`exposure to one of mankind's earliest codes of conduct, the Ten Commandments.'" See Opp'n Mem. at 3 (quoting Books v. City of Elkhart, 79 F.Supp.2d 979, 982 (N.D.Ind. 1999), appeal pending and State v. Freedom From Religion Found., Inc., 898 P.2d 1013, 1017 (Colo.1995)).³ The FOE undertook a national campaign at or about this time in support of this program. See id.

In 1991, when the previous monument was vandalized, Indiana officials promised the public it would replace the monument. See id. at 3-4; Stip. ¶ 26. In 1996, Indiana officials renewed their promise to replace the FOE monument; however, in the interim the original monument had been repaired and relocated to the Eagles Lodge in Anderson, Indiana. See Steele Dep. at 7, 12. When plans were announced to construct a new Ten Commandments monument on Statehouse grounds, Representative Steele oversaw completion of the initial design in conjunction with the Indiana Limestone Institute. See id. at 6-9; Stip. ¶ 22. This design called for a more substantial monument, hopefully more impervious to vandalism, containing only a text of the Ten Commandments. See Opp'n Mem. at 4; ICLU Reply at 2. However, after being apprised of the ruling in State v. Freedom From Religion Foundation, Inc., Representative Steele (who is an attorney) decided to add two other historical documents to the monument, namely, the Bill of Rights and the Preamble to the 1851 Indiana Constitution. See Steele Dep. at 5, 17, 27-34.⁴

The Monument as designed consists of two pieces, a base and an upper portion, weighing approximately 11,500 pounds total. See Stip. ¶ 7. The base is a rectangular block of limestone, six-feet, seven-inches wide, four-feet, seven-inches deep, and two-feet, eight-inches long. See id. ¶ 8. On top of the base will sit a four-sided block — tapered, with two large faces, each measuring four-feet, four-inches in height by three-feet, seven-inches in width, while the smaller faces will be triangular, also four-feet, four-inches tall, but tapering from a width of approximately two-feet, six-inches at the base to six-inches at the top. See id. ¶ 9.

The large surfaces on the top block will be tablet shaped, that is, the stones will be carved with two rounded arcs or arches at the top; (it is a form widely utilized in artistic depictions of the stone tablets delivered or handed down by Moses upon his return from Mt. Sinai). One of the surfaces will display the following text:

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. 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.

Id. ¶¶ 9-11. The State represents that this text, which is allegedly similar to that appearing on the 1958 FOE-donated monument, will be set forth in all-capital letters approximately one-inch in height. See id. ¶ 13. This is the only text appearing on one side of the monument. See id. ¶ 12....