Staley v. Harris County, Tex.
| Decision Date | 15 August 2006 |
| Docket Number | No. 04-20667.,04-20667. |
| Citation | 461 F.3d 504 |
| Parties | Kay STALEY, Plaintiff-Appellee, v. HARRIS COUNTY, TEXAS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ayesha Khan, Richard Brian Katskee (argued), Americans United For Separation of Church & State, Washington, DC, Randall L. Kallinen, Houston, TX, for Staley.
Bruce S. Powers, Asst. Cty. Atty. (argued), Houston, TX, for Defendant-Appellant.
Edward Lawrence White, III, Thomas More Law Ctr., Ann Arbor, MI, for Thomas More Law Ctr., Amicus Curiae.
Douglas G. Smith, Kirkland & Ellis, Chicago, IL, for Eagle Forum Educ. & Legal Defense Fund, Amicus Curiae.
Joel Lance Thollander (argued), Austin, TX, for State of TX, Amicus Curiae.
Benjamin David DuPre, Law Officers of Benjamin D. DuPre, Montgomery, AL, for Moral Law Inc., Amicus Curiae.
Peter Dominick Lepiscopo, Law Offices of Peter D. Lepiscopo, San Diego, CA, for Pac. Justice Inst., Amicus Curiae.
Joshua William Carden, Alliance Defense Fund, Scottsdale, AZ, for Star of Hope Mission, William L. Mosher, Jr., William L. Mosher, III, Emily Mosher, Margaret Rosenlund, Ann Waldie and Christopher Jones, Amici Curiae.
Kelly J. Shackelford, Liberty Legal Inst., Plano, TX, for Liberty Legal Inst., Amicus Curiae.
Steven W. Fitschen, Nat. Legal Found., Virginia Beach, VA, for Nat. Legal Found., Amicus Curiae.
Sylvia Ann Mayer, Stephen Todd Loden, Weil, Gotshal & Manges, Houston, TX, for Anti-Defamation League, Amicus Curiae.
Michael F. Linz, Dallas, TX, for Am. Civ. Liberties Union Found. of TX, Amicus Curiae.
Appeals from the United States District Court for the Southern District of Texas.
Before JOLLY, HIGGINBOTHAM and SMITH, Circuit Judges.
This appeal raises questions about the constitutionality of a monument, dedicated to a local citizen, located on the grounds of the Harris County Civil Courthouse. The rub is that the monument contains an open Bible. The Plaintiff, Kay Staley, an atheist, argues that the monument violates the Establishment Clause, because its primary purpose and effect are religious. Harris County argues that its purpose and effect are secular—to memorialize the life of a worthy citizen whose contributions to the community reflect his Christian principles. We hold that although the monument at one time may have passed constitutional scrutiny, its recent history would force an objective observer to conclude that it is a religious symbol of a particular faith, located on public grounds—public grounds that may not reflect preference in matters of religion under the Establishment Clause of the First Amendment of the United States Constitution as interpreted and applied by modern day jurisprudence. We therefore affirm the district court's judgment.
The Courthouse was built in 1910 and is owned and operated by Harris County, Texas, a political subdivision of the State of Texas.1 The Courthouse occupies the center of an entire city block in an area of downtown Houston that contains many other county government buildings. Although it originally housed all county and state courts and county government offices, the Courthouse is currently designated as a Civil Courthouse, housing eighteen courts, plus the county and district clerks' offices.
In 1953, the Star of Hope Mission ("Star of Hope"), a local Christian charity that provides food and shelter to indigents, decided to build a memorial to William S. Mosher ("Mosher"), a prominent Houston businessman and philanthropist who had been a long-time, active supporter of Star of Hope before his death in 1948. Carloss Morris ("Morris"), the president of the Star of Hope Mission in 1953, approached the Harris County Commissioners Court and secured permission to erect a memorial to Mosher on the Courthouse property. Morris testified that Star of Hope selected a location in front of the Courthouse because of the permanence and prominence of its location.
Star of Hope designed and paid for the Mosher monument. It was erected in 1956 in a plaza twenty-one feet from the main entrance to the Courthouse. The monument measures two feet, six inches by three feet, and is four feet, five inches high. Engraved on the front surface of the monument, and occupying most of the front surface's area, is the following inscription:
STAR OF HOPE
MISSION
ERECTED
IN LOVING MEMORY
OF
HUSBAND AND FATHER
WILLIAM S. MOSHER
A.D. 1956
The top part of the monument is a glass-topped display case that is sloped towards the Courthouse entrance. Star of Hope placed an open Bible in the glass display case to memorialize Mosher's Christian faith, although the monument contains no written explanation for the presence of the Bible.2 The sloping top of the monument has the appearance of a lectern. The display case does not contain any other items. The monument was dedicated in 1956 in a public ceremony, which included Christian prayers.
Because the monument faces the main entrance to the Courthouse, it is readily visible to attorneys, litigants, jurors, witnesses, and other visitors to the Courthouse. However, a passerby would have to walk up to the monument to observe that it contains a Bible and would have to stand in front of it to read the Bible. The open Bible as displayed measures twelve by sixteen inches. The area in which the monument is located contains two wall plaques and two free-standing historical markers. Neither the plaques nor the historical markers contain any religious message. No other open books are displayed in or near the Courthouse. Other monuments, markers, and plaques are present in and near other county buildings, but none of them contain a religious message.
Star of Hope maintained the monument from 1956 to 1995. The monument was vandalized several times and the Bible stolen. Star of Hope replaced it each time. In 1988, atheists complained about the Bible to the Harris County Commissioners Court and asked that it be removed. Although the evidence on this point is not entirely clear, it appears that Star of Hope decided either to remove the Bible or not to replace it again, rather than face potentially costly litigation. From 1988 to 1995 the top of the monument remained open and empty, and it was often used as a trash bin.
This state desuetude ended in 1995, when John Devine was elected as a state district judge. Judge Devine campaigned on a platform of putting Christianity back into government. As a judge, he initially maintained his office in a county building near the Courthouse, and later moved to the Courthouse. His official court reporter was Karen Friend. In 1995, Judge Devine and Friend initiated a project to solicit private donations to refurbish the monument, to restore a Bible to the display case, and to add neon lighting to the display case. Judge Devine obtained approval from Harris County, and made improvements to the monument, including the new Bible and a red neon light outlining the Bible. Harris County, however, did not pay for any of the improvements. A ceremony was held on the Courthouse grounds in November 1995 to commemorate the refurbishing of the monument and the replacement of the Bible. A number of Christian ministers led prayers at the rededication ceremony. Spectators and participants sang "The Battle Hymn of the Republic".
In 1996, and again in 1998, Friend paid for repairs to the lights in the display case and to the display case to protect the Bible from moisture. Since 1995, Harris County has paid for electricity at the cost of $93.16 per year to illuminate the neon lights that were installed in 1995. For a few years after the monument was refurbished, Friend periodically turned the pages of the Bible to selected passages. Since 1997, Star of Hope has maintained the monument and turned the pages of the Bible. Although Harris County does not maintain the monument, it retains the authority to move or alter it.
Staley is a resident and taxpayer of Harris County. Staley, an attorney, passes the monument going to and from the Courthouse in the course of her occupation. She testified that she is offended by the Bible display in the monument because it advances Christianity and it sends a message to her and to non-Christians that, because they do not share the Christian faith, they are not full members of the Houston political community.
After Staley filed suit asking that Harris County be ordered to remove the Bible display, supporters of the Bible display held a large rally on September 4, 2003, in the Courthouse plaza next to the monument. Several hundred rally participants prayed and stressed that the Bible was a foundation of the Christian faith.3 County Judge Robert Eckels, Judge Devine, and Harris County Attorney Mike Stafford spoke at the rally and participated in the prayers led by Christian ministers.4 Eckels and Stafford stated that the County would strongly oppose the lawsuit.5
On August 25, 2003, Staley filed suit in the United States District Court for the Southern District of Texas, requesting a temporary restraining order, preliminary injunction, and permanent injunction against Harris County to remove the Bible from the display case, as well as requesting attorney's fees. On August 10, 2004, the district court entered a final judgment in favor of Staley, ordering the Bible removed from the monument, as well as ordering Harris County to pay Staley $40,586 in attorney's fees and expenses. The district court reasoned that the purpose and the effect of the Bible in the monument casing were religious, thus the presence of the Bible violated the Establishment Clause. Harris County timely appeals the district court's decision.
Harris County maintains that the district court erred in its determination that the monument violates the Establishment Clause....
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Staley v. Harris County, Tex.
...We therefore DISMISS the appeal and REMAND the case solely for a determination of appropriate attorneys' fees. I. In our panel opinion, 461 F.3d 504, we set out the history of the Mosher monument. The monument was erected on the Harris County Civil Courthouse grounds in 1956 in honor of Hou......
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