State v. Freedom From Religion Foundation, Inc., 93SC554

• Decision Date: 12 June 1995
• Docket Number: No. 93SC554,93SC554
• Citation: 898 P.2d 1013
• Parties: The STATE of Colorado; Roy Romer, Governor of the State of Colorado; Department of Administration, State of Colorado; and Forrest Cason, Executive Director, Department of Administration, Petitioners, v. The FREEDOM FROM RELIGION FOUNDATION, INC., a Wisconsin Non-Profit Corporation; the Colorado Chapter of the Freedom From Religion Foundation, Inc.; Jeff Baysinger; Howard Huguley; Glenn V. Smith; and Lee Whitfield, Respondents.
• Court: Colorado Supreme Court

Page 1013

898 P.2d 1013

63 USLW 2798

The STATE of Colorado; Roy Romer, Governor of the State of

Colorado; Department of Administration, State of Colorado;

and Forrest Cason, Executive Director, Department of

Administration, Petitioners, v. The FREEDOM FROM RELIGION FOUNDATION, INC., a Wisconsin

Non-Profit Corporation; the Colorado Chapter of the Freedom

From Religion Foundation, Inc.; Jeff Baysinger; Howard

Huguley; Glenn V. Smith; and Lee Whitfield, Respondents.

No. 93SC554.

Supreme Court of Colorado,

En Banc.

June 12, 1995.

Rehearing Denied June 30, 1995.

Gale A. Norton, Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Dianne E. Eret, Asst. Atty. Gen., Gen. Legal Services Section, Denver, for petitioners.

Robert R. Tiernan, Denver, for respondents.

Coghill & Goodspeed, P.C., John P. Baker and Susan D. Brienza, Denver, for amicus curiae American Civil Liberties Union.

Justice SCOTT delivered the Opinion of the Court.

In this case we must determine whether the content and context of a monument, donated to the State for a secular purpose but containing a message of both religious and secular value, displayed among other monuments and tributes on the grounds of the State Capitol, violate the constitutional provisions prohibiting the establishment of or any preference to religion. We conclude that under the facts of this case they do not.

I

The Freedom From Religion Foundation, Inc., a Wisconsin non-profit corporation, the Colorado Chapter of The Freedom From Religion Foundation, Inc., and several individual citizens (collectively referred to as "respondents"), plaintiffs below, sought removal of a monument of the Ten Commandments located on state property. The trial court found that the monument did not violate the applicable constitutional provisions ¹ and the court of appeals reversed. Freedom From Religion Foundation, Inc. v. State of Colorado, 872 P.2d 1256 (Colo.App.1993). The State of Colorado, Roy Romer, Governor of Colorado, the Colorado Department of Administration

and the Department's executive director (collectively referred to as "State" or "petitioners"), sought review of the court of appeals' judgment, which held that the monument "conveys an essential religious message that would appear to the reasonable observer to be endorsed and approved by the state because of its contents and its location on the property of the state...." Id. at 1265. As previously directed by the court of appeals, the trial court applied the legal standard we set forth in Conrad v. City and County of Denver, 656 P.2d 662, 672 (Colo.1983) (Conrad I ), and ruled the monument does not offend the Establishment or Preference Clauses. On review ² we now apply that standard as enlightened by subsequent Supreme Court decisions, and we accordingly reverse

II

Although the evidentiary facts presented to the trial court are largely undisputed, they are essential to a complete understanding of this case. Therefore, we reiterate in detail the evidence in the record and the facts derived at trial.

A

In the city of Denver, Colorado, there are adjoining parcels of tree-lined property owned by the State of Colorado and the City and County of Denver. At the east end of the property sits the State Capitol Building and a square block of park. Although a portion of the grounds around the Capitol includes an access street and area for parking, it is landscaped with lawn and trees.

Directly west of the State Capitol Building, across Lincoln Street, is a one-square-block park, owned by the State, known as "Lincoln Park." Lincoln Park, just south of downtown Denver, is bounded by four highly traveled streets: Colfax Avenue on the north, East Fourteenth Avenue on the south, Lincoln Street on the east, and Broadway Street on the west. Lincoln Park is landscaped with lawn and a number of trees.

The State Capitol grounds and Lincoln Park make up a three-block area called the "Capitol Complex Grounds." Within the Capitol Complex Grounds are several monuments. On the east side of the Capitol there is a large statue of a Native American and a buffalo which was placed on the grounds in the early 1900s. In front of the Capitol's west entrance is a monument to soldiers who served and died in the Civil War, including a statue of a Union Soldier and two canons that were used during the Civil War. Other commemorative areas include a bench dedicated as a Pearl Harbor monument and an Aspen grove, comprised of seven trees, that was planted in memory of the Challenger Astronauts who perished in the tragic space shuttle disaster several years ago. There are also numerous arboreal tributes in honor of non-military activities and events ranging from Arbor Day to soil conservation efforts.

Near the center of Lincoln Park at a point where two pedestrian walkways meet, there has been erected a Washington monument-type structure, the Veterans War Memorial. Dedicated to the veterans of all of our nation's wars, that memorial rises to a height of approximately forty-five feet, making it much taller than all of the other monuments and the most prominent structure in the park, with all pathways leading to its base. The Veterans War Memorial is centered on a visual line between the State Capitol Building and the Denver City and County Building.

Throughout Lincoln Park there are several other monuments of various sizes. A statue more than twenty-feet tall stands in the park's northeast quadrant in tribute to a World War II Hispanic Congressional Medal of Honor recipient, J.P. Martinez, and commemorates the participation of Coloradans of Hispanic descent in that and other wars. The J.P. Martinez Statue is north of the Veterans War Memorial.

South of the Veterans War Memorial in the southeast quadrant of the park stands a replica of the Liberty Bell. Like the original Liberty Bell, the replica contains a phrase in raised letters taken from Leviticus in the Old Testament of the Bible, which reads: "Proclaim liberty throughout the land and unto all the inhabitants thereof." ³ In the northwest quadrant and close to the intersection of Colfax Avenue and Broadway Street is a drinking fountain dedicated to the memory of Sadie M. Likens, who aided war survivors in the early part of this century. Also near the center of the park and across from the Veterans War Memorial near Broadway Street is a flagpole honoring those who served in the military campaign known as the Spanish-American War.

The monument that has spurred this litigation is the Ten Commandments monument, which is located in the northwest quadrant of Lincoln Park, some forth to fifty feet from the intersection of Colfax Avenue and Broadway Street. The Ten Commandments monument is located adjacent to the walkway that runs in a generally northwest-southeast direction across the park. It is approximately fifty feet west of the much larger twenty-foot tall J.P. Martinez Hispanic Veterans Memorial and about thirty feet east of the larger drinking fountain monument.

The Ten Commandments monument is made of stone and is three to four feet high and about two and one-half feet wide. It is sculpted in the form of two tablets. At the top of each tablet is a floral design that surrounds the representation of two other tablets. Inside these latter tablets are symbols which were identified at trial as Phoenician letters but which form no intelligible words in that or any known language. Between the two tablets on this monument is an eye within a triangle--an "all-seeing eye" similar to that depicted on the one-dollar bill. Expert testimony indicates that this Egyptian symbol is generally considered to be secular in nature, although some people view it as representing the eye of God. Immediately below this symbol is an American eagle which is grasping an American flag.

A unique version of the text of the Ten Commandments is immediately below the American flag. It reads as follows:

THE TEN COMMANDMENTS

I AM the LORD thy God

I. Thou shalt have no other gods before me.

II. Thou shalt not take the name of the Lord thy God in Vain.

III. Remember the Sabbath day to keep it holy.

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

V. Thou shalt not kill.

VI. Thou shalt not commit adultery.

VII. Thou shalt not steal.

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

IX. Thou shalt not covet thy neighbor's house.

X. Thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor's.

Below this text there are two stars of David, symbols of the Jewish religion, located one in each corner. Between the two stars of David, in the center, are two Greek letters, Chi and Rho, one superimposed upon the other, which is a symbol for the first two letters in the name "Jesus Christ" developed by the early Christian church and still found in many Catholic churches. At the very bottom of the monument appears a scroll with these words:

PRESENTED

BY MEMBERS OF

FRATERNAL ORDER OF

EAGLES

OF COLORADO

B

In 1943, a Minnesota juvenile court judge decided to address what he perceived as a need of many juveniles he had encountered in his court. Believing these juveniles were "without any code of conduct or standards by which to govern their actions," the judge thought "they could benefit from exposure to one of mankind's earliest codes of conduct, the Ten Commandments." He made clear, however, that such exposure "was not to be a religious instruction of any kind." The juvenile judge decided to post a copy of the Ten Commandments in state juvenile courts across the country as part of a nationwide youth guidance program. The judge was of the opinion that the commandments would demonstrate to the youths coming in contact with the juvenile courts that there were long "recognized codes of behavior to guide and help them."

As...