Summum v. City of Ogden

Decision Date19 July 2002
Docket NumberNo. 01-4022.,01-4022.
Citation297 F.3d 995
PartiesSUMMUM, a corporate sole and church, and R.L. Zefferer, Plaintiffs-Appellants, v. CITY OF OGDEN, a municipal government entity; Glenn J. Mecham, Mayor; Jesse M. Garcia, Member, City Council; Kenneth J. Alford, Member, City Council; Fasi M. Filiaga, Member, City Council; Rick J. Mayer, Member, City Council; John W. Wolfe, Member, City Council; Ralph W. Mitchell, Member, City Council; and Garth B. Day, Member, City Council, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Brian M. Barnard (James L. Harris, Jr., with him on the briefs) of the Utah Legal Clinic, Salt Lake City, UT, for Plaintiffs-Appellants.

Richard A. Van Wagoner (Allan L. Larson and Andrew M. Morse with him on the brief) of Snow, Christensen & Martineau, Salt Lake City, UT, for Defendants-Appellees.

Before SEYMOUR and HENRY, Circuit Judges, and OBERDORFER, District Judge.*

HENRY, Circuit Judge.

In this 42 U.S.C. § 1983 action, Summum, a church, alleges that the City of Ogden (sometimes, "the City"), and various officials of the City, violated the church's First Amendment rights. Both parties moved for summary judgment; the district court granted summary judgment in favor of the City of Ogden. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

On the lawn outside the City's municipal building (sometimes, the "Municipal Grounds"), the City of Ogden maintains, and has maintained since 1966, a monument inscribed with the Ten Commandments (the "Ten Commandments Monument" or the "Monument"). The Ten Commandments Monument is just under five feet tall and three feet wide. Most prominently, the Monument bears an inscription of a version of the Ten Commandments:

I AM the LORD thy God.

Thou shalt have no other gods before me.

Thou shalt not make to thyself any graven images.

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

Remember the Sabbath day, to keep it holy.

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

Thou shalt not kill.

Thou shalt not commit adultery.

Thou shalt not steal.

Thou shalt not bear false witness against thy neighbor.

Thou shalt not covet thy neighbor's house.

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

Aples' App. at 87, 90 (Aff. of Glenn J. Mecham, dated Feb. 22, 1999, Attach. A). Alongside the statements quoted above, the Monument also includes two Stars of David; the Greek letter Chi (χ) and Greek letter Rho (ρ), each superimposed upon the other; an `all-seeing eye'; a pyramid; an eagle; an American flag; some Phoenician letters;1 and a representation of a scroll containing an inscription reading: "Presented to the City of Ogden and Weber County Utah, by Utah State Aerie Fraternal Order of Eagles 1966." Id. Located to the left and to the right of the Monument are, respectively, a police officer memorial and a sister city tree and plaque. Also located on the Municipal Grounds, though somewhat removed from the area containing the above-described monuments, are various historical markers.

The City of Ogden originally acquired the Ten Commandments Monument as a gift from a community organization calling itself the Fraternal Order of Eagles (the "Eagles"). During the 1950s and 1960s, the Eagles donated similar monuments to communities across the United States. Through the monument program, the Eagles hoped to provide American youth with "a code of conduct or standards by which [those youth might] govern their actions." Aples' Br. at 7. Perhaps not surprisingly, the Eagles' monuments have generated considerable litigation. See, e.g., Summum v. Callaghan, 130 F.3d 906, 909, 919-20 (10th Cir.1997) ("Callaghan") (concluding that Summum stated a Free Speech Clause claim where a municipality displayed a "Ten Commandments monolith" — created and donated by the Eagles — while simultaneously declining to display "a monolith displaying certain religious tenets of the Summum church"); Books v. City of Elkhart, Ind., 235 F.3d 292, 302-07 (7th Cir.2000) (concluding that an Indiana municipality's display of an identical Ten Commandments Monument violated the Establishment Clause), cert. denied, 532 U.S. 1058, 1058-59, 121 S.Ct. 2209, 149 L.Ed.2d 1036 (2001).

Summum is a religion formed, in 1975, and chartered in Utah. Arguing that the City's display of the Ten Commandments Monument violates the church's First Amendment right to be free from an establishment of religion, followers of the Summum religion requested that the City remove the Monument. The City declined to do so. Followers of the Summum religion proposed, instead, then, that the City install an identical monument in approximately the same location as the Ten Commandments Monument, this new monument to be funded entirely by private contributions (like the Ten Commandments Monument) but to bear, instead of the Ten Commandments, the Seven Principles of the Summum religion (the "Seven Principles Monument").2 The City of Ogden likewise rejected this offer.

Summum brought this suit, alleging that the City of Ogden violates the church's First Amendment rights by displaying the Ten Commandments Monument (in violation of the First Amendment's Establishment Clause) and again violates those rights by displaying that Monument while refusing to display a Seven Principles Monument (in violation of the First Amendment's Free Speech Clause). The City of Ogden countered that, as to the Establishment Clause claim, since our circuit has held that another municipality did not violate that Clause in displaying an identical Ten Commandments Monument, see Anderson v. Salt Lake City Corp., 475 F.2d 29, 30-34 (10th Cir.1973), circuit precedent forecloses us from identifying such a violation here. As to the Free Speech Clause claim, the City primarily argued that the Ten Commandments Monument represents the City's own speech rather than the private speech of the Eagles and thus that the City is not discriminating between private speakers: according to the City, the relevant forum contains no private speech at all. In the alternative, the City argued that, if the City is discriminating in favor of the Eagles and against Summum, such discrimination is nonetheless reasonable, viewpoint neutral, and, in any case, necessary to avoid an independent violation of the Establishment Clause.

The district court agreed with the City and, accordingly, granted summary judgment in favor of the City as to both of Summum's claims. As to the Establishment Clause claim, the district court ruled that the Ten Commandments Monument is primarily secular in nature and thus that the City's display of that monument does not violate the Establishment Clause. As to the Free Speech Clause claim, the district court concluded that the City has adopted, as the City's own, the speech contained on each of the permanent monuments located on the Municipal Grounds. To allow Summum to place the Seven Principles Monument on the Municipal Grounds, the court reasoned, would, then, amount to permitting Summum to dictate the City's own expression. Accordingly, the district court ruled that the City had violated neither the Establishment Clause nor the Free Speech Clause of the First Amendment.

II. DISCUSSION

At oral argument, Summum's counsel conceded that, absent en banc reconsideration of Anderson v. Salt Lake City Corp., 475 F.2d 29, 30-34 (10th Cir.1973), this panel could not reverse the district court's grant of summary judgment, in favor of the City of Ogden, on Summum's Establishment Clause claim.3 Given Summum's concession, we decline to further consider this issue and thus affirm that portion of the district court's order pertaining to Summum's Establishment Clause claim.

We do address Summum's arguments in regard to the Free Speech Clause; we conclude that Summum has demonstrated the City of Ogden's violation of Summum's rights under this clause of the First Amendment and, hence, we reverse the district court's grant of summary judgment on this issue. Our free-speech inquiry proceeds in three steps. First, we dispose of a number of uncontested matters, including (1) review of the elements of a 42 U.S.C. § 1983 claim; (2) notation of the applicable standard of appellate review (de novo); (3) consideration of whether the speech in question constitutes protected speech (it does); (4) identification of the relevant forum (permanent monuments on the grounds of Ogden City municipal building); (5) classification of the relevant forum for purposes of Free Speech Clause analysis (a nonpublic forum); and (6) notation of the applicable standard of Free Speech Clause review (a reasonableness standard that, for one, bars viewpoint discrimination). Second, we apply the relevant standard to the City's actions in rejecting the Seven Principles Monument. In so doing, we conclude that (1) the City did discriminate against Summum in rejecting the Seven Principles Monument while simultaneously displaying the Ten Commandments Monument and, further, (2) that discrimination was, here, unreasonable. Third, we conclude that the City's alleged concern for the avoidance of a violation of the Establishment Clause does not justify rejection of the Seven Principles Monument.

A. Preliminary Matters
1. Elements of a § 1983 Claim

Under 42 U.S.C. § 1983, Summum must establish "(1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a `person' (4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District of Columbia." 1A MARTIN A. SCHWARTZ, SECTION 1983 LITIGATION: CLAIMS AND DEFENSES § 1.4, at 12 (3d ed.1997) (internal...

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