235 F.3d 292: William A. Books and Michael Suetkamp, Plaintiffs-appellants, v. City of Elkhart, Indiana, Defendant-appellee
In the United States Court of Appeals For the Seventh Circuit - 235 F.3d 292
ARGUED MAY 12, 2000DECIDED DECEMBER 13, 2000
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 98 C 230--Allen Sharp, Judge.[Copyrighted Material Omitted]
Before RIPPLE, MANION and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge.
On the lawn of the City of Elkhart's Municipal Building stands a monument inscribed with the Ten Commandments. William A. Books and Michael Suetkamp, residents of Elkhart, object to the display of this monument on government property. They brought this action in the district court, claiming that the display of the monument by the City of Elkhart violates the Establishment Clause of the First Amendment to the Constitution of the United States. The district court granted summary judgment for the City of Elkhart. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand for proceedings consistent with this opinion.
A monument inscribed with the Ten Commandments is located on the lawn in front of the Municipal Building of the City of Elkhart ("the City" or "Elkhart"). The plaintiffs, residents of Elkhart, object to the presence of this monument in this location. We therefore must determine whether this presence of the monument violates the Establishment Clause of the Constitution of the United States, which has been made applicable to the states through the Fourteenth Amendment.1 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.
In the 1940s, a juvenile court judge in Minnesota, E. J. Ruegemer, inaugurated the Youth Guidance Program. Disheartened by the growing number of youths in trouble, he sought to provide them with a common code of conduct. He believed that the Ten Commandments might provide the necessary guidance. Judge Ruegemer originally planned to post paper copies of the Ten Commandments in juvenile courts, first in Minnesota and then across the country. To help fund his idea, he contacted the Fraternal Order of Eagles ("FOE"), a service organization dedicated to promoting liberty, truth, and justice. At first, FOE rejected Judge Ruegemer's idea because it feared that the program might seem coercive or sectarian. In response to these concerns, representatives of Judaism, Protestantism, and Catholicism developed what the individuals involved believed to be a nonsectarian version of the Ten Commandments because it could not be identified with any one religious group. After reviewing this version, FOE agreed to support Judge Ruegemer's program.
Around this same time, motion picture producer Cecil B. DeMille contacted Judge Ruegemer about the program. DeMille, who was working to produce the movie "The Ten Commandments," suggested that, rather than posting mere paper copies of the Ten Commandments, the program distribute bronze plaques. Judge Ruegemer replied that granite might be a more suitable material because the original Ten Commandments were written on granite. DeMille agreed with Judge Ruegemer's suggestion, and the judge thereafter worked with two Minnesota granite companies to produce granite monuments inscribed with the Ten Commandments. Local chapters of FOE financed these granite monuments and then, throughout the 1950s, donated them to their local communities. The Elkhart chapter of FOE donated its version of the Ten Commandments monument to the City of Elkhart in 1958.
Elkhart's newspaper, The Elkhart Truth, published an article about the dedication of the Ten Commandments monument to the City of Elkhart. See R.29, Ex.A, Ceremonies Pay Tribute in Memorial Day Rite; City Given Decalogue, The Elkhart Truth, May 31, 1958, at 1. The dedication was a part of the City's Memorial Day ceremonies, and the participants in the dedication included Robert Long, city controller; Mahlon Hull, past president of the Elkhart Chapter of FOE; Dale Swihart, lodge secretary for FOE; the Reverend William Gieranowski, assistant pastor of St. Vincent's Catholic Church; the Reverend W. W. Kenhell, outgoing president of the Elkhart Ministerial Association; and Rabbi M. E. Finkelstein of Temple Israel.
According to the newspaper, Reverend Kenhell spoke at the ceremony, imparting the message that "Americans have inherited moral power from the founding fathers of our country, . . . and if they will accept the precepts of the Ten Commandments, it will provide their redemption from today's strife and fear." Id. Father Gieranowski also spoke at the ceremony and stated that moral law does not change and that the Ten Commandments should be engraved not only in stone but in the hearts, minds, and consciences of everyone. See id. Finally, the newspaper noted, Rabbi Finkelstein explained that the dedication of the monument "should be an occasion for dedication of everyone to the high ideals inherent in the American way of life." Id.
As we have noted earlier, Elkhart's Ten Commandments monument is located on the lawn in front of the City's Municipal Building. The Municipal Building, situated on the corners of Second and High Streets in downtown Elkhart, contains the mayor's office, the City's legal and human relations departments, the city court, the prosecutor's office, and the offices of the Common Council. Above the main entrance to the Municipal Building is a bas relief of an elk's head. Directly to the left of the elk's head is the word "DEDICATVM," and on the immediate right of the elk's head is the word "JVSTITIAM."2 R.29 & 31, Ex.14-16.
The lot for the Municipal Building contains the building itself, sidewalks, and a parking area. Between the building and the sidewalks is a grass lawn that is approximately 25 feet wide. Within this lawn are three monuments. The City maintains this lawn surrounding the monuments but does not contribute any time, money, or effort to the maintenance of the monuments themselves.
On the southeast corner of the building's lot--the corner nearest the intersection--are the Revolutionary War Monument and the Freedom Monument. The Revolutionary War Monument, closest to the street, is a large stone, which bears a plaque and is surrounded by a bed of flowers. See R.29 & 31, Ex.23-24. The plaque explains that the monument was donated by the Daughters of the American Revolution in honor of the Revolutionary War soldiers buried in Elkhart County. Behind the Revolutionary War Monument is the Freedom Monument. The Freedom Monument is a brick pillar with a light on its top. A plaque on the pillar reads: "BEHOLD FRIEND, YOU ARE NOW ON HALLOWED GROUND FOR HERE BURNS FREEDOMS HOLY LIGHT." R.29 & 31, Ex.25. Collectively, the Revolutionary War Monument and the Freedom Monument are referred to as the War Memorial.
On the northeast corner of the lot is the Ten Commandments monument.3 The Ten Commandments monument is made of granite and stands six feet high and three and one-half feet wide. The largest portion of the monument is consumed by the text of the Ten Commandments. The face of the monument reads as follows
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.
R.29 & 31, Ex.5. This text, as stated previously, is an amalgamation of Jewish, Protestant, and Catholic versions of the Ten Commandments.
At the top of the monument, there are two small tablets that contain ancient Hebrew script. Surrounding both of these tablets is a floral design, and between the two tablets is an eye within a pyramid--an all-seeing eye.4 Immediately below the all-seeing eye is an American Eagle grasping the American flag. Below the text on the monument are two small Stars of David. In the center of the two stars is a similarly sized symbol representing Christ: two Greek letters, Chi and Rho, superimposed upon each other. At the base of the monument is a small scroll, which reads as follows
THE CITY OF ELKHART, IND.
ELKHART AERIE NO. 395
FRATERNAL ORDER OF EAGLES
Photos of the Ten Commandments monument and of the front of the Municipal Building were included in the trial record and are attached as appendices to this opinion.
Insofar as this record shows, the presence of the Ten Commandments monument on the lawn of the Elkhart Municipal Building produced no controversy until 1998. In that year, the City's mayor was informed that, unless the monument was removed, a lawsuit would be filed. After this warning was received, the Common Council of the City of Elkhart convened on May 4, 1998, and adopted a resolution "regarding the display of the Ten Commandments on public property." R.29, Ex.B. According to this resolution, the monument and the symbols on its face recognize the historical and cultural significance of the Ten Commandments. The Common Council noted in its resolution that numerous other historical and cultural plaques are inside the Municipal Building. The Common Council further emphasized that "the Ten Commandments have had a significant impact on the development of the fundamental legal principles of Western Civilization." Id. Finally, the Common Council concluded that, because the Ten Commandments monument "is a historical and cultural monument that reflects one of the earliest codes of human conduct," it was proper for the monument to remain. Id. Because the Common Council did not remove the monument, two residents of Elkhart filed this action against the City of Elkhart.
Plaintiff William Books is a resident of Elkhart County and has resided in Elkhart since the early 1980s. In Mr. Books' affidavit, he states that "[t]o the extent that I must, or wish to, go to the Municipal Building to participate as a citizen of Elkhart I must come into direct and unwelcome contact with the [Ten Commandments] monument." R.24, Attachment 1, at 2. Mr. Books explains that, in the past, he has gone to the Municipal Building to pay a traffic ticket and to attend City Council meetings when the issues discussed were ones that interested him. Also, notes Mr. Books, his deposition for this case was conducted in the City Attorney's office in the Municipal Building. As Mr. Books explains, although he could use the Municipal Building's side entrance instead of its main entrance in order to avoid the monument, he "know[s] the Ten Commandments monument is there whether [he] see[s] it or not." Id. at 3.
Mr. Books further explains that he passes the monument in his daily activities, including: riding his bicycle on a route that passes the Municipal Building; patronizing the Elkhart Public Library, which is located across the street from the Municipal Building; and visiting his landlord's office and his cousin's house, both of which are located near the Municipal Building. He states that, in order to avoid seeing the Ten Commandments monument, he "would have to assume the special burden of altering [his] daily routine so as to avoid this direct and unwelcome contact." Id. at 2.
Plaintiff Michael Suetkamp is also a resident of Elkhart County and has lived in Elkhart since the early 1990s. In his affidavit, Mr. Suetkamp states that he is an atheist and is offended deeply by the placement of the Ten Commandments monument on the property of the City of Elkhart. He states that he must come in direct and unwelcome contact with the monument to participate as a citizen of Elkhart. As he explains, he has entered the Municipal Building to pay a traffic ticket, to attend a City Council meeting, to talk to the City Council's Clerk, and to have his deposition taken by the City Attorney in this case.
Mr. Suetkamp also avers that he comes in direct and unwelcome contact with the monument in his daily activities. For example, he states that the route he takes to return home from work passes the Municipal Building and that he sometimes sees the monument when entering the Elkhart Public Library. Although he passes the monument frequently, Mr. Suetkamp admits that he does not look di rectly at it every time, but he states that "[e]ven if I don't see it, I certainly know it is there." R.24, Attachment 4, at 2.
The district court held that the placement of the Ten Commandments monument on the lawn of the Elkhart Municipal Building did not violate the Establishment Clause. When analyzing the placement of the monument under the test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971), the court examined (1) whether the City had a secular purpose in maintaining the monument, (2) whether the primary effect of the monument was to advance religion, and (3) whether the City's action fostered an excessive entanglement of government with religion. See id. at 612-13. After stating that the third prong did not apply, the court found that Elkhart had a secular purpose for the monument. According to the court, the City's purpose in accepting the monument, promoting morality in youths, is a legitimate aim of government and is a traditional part of the police powers of the state. Also, the court stated, the City's purpose in continuing to display the monument, to maintain exhibits of cultural and historical significance on City property, is also secular.
The court also discussed whether the monument had the effect of endorsing religion. It noted that this question is asked from the perspective of a reasonable observer who is charged with knowledge of the history and context of the display. The court stated that a reasonable observer looking at the monument would know that the Ten Command ments has both religious and historical significance and would acknowledge the significance of the religious symbols on the monument as signs of the major religions of this country at the time of the monument's donation. The court next pointed out that a reasonable observer would view the Ten Commandments monument as part of the City's overall collection of displays of historical and cultural significance. As the court explained, the lawn in front of the Municipal Building is small, and the City could not be expected to put all of its displays in one place. The court then held that it does not violate the Establishment Clause for the City of Elkhart to acknowledge the importance of the Ten Commandments in the legal and moral development of the nation by displaying the monument on the lawn of the Municipal Building.5
We review de novo the decision of the district court to grant summary judgment. See Wright v. Illinois Dep't of Corrections, 204 F.3d 727, 729 (7th Cir. 2000). Summary judgment is proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In determining whether a genuine issue of material fact exists, we must review the record in the light most favorable to the plaintiffs and make all reasonable inferences in their favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Here, the parties do not dispute the material facts, so we shall review de novo the district court's conclusions of law. See Freedom From Religion Found., Inc. v. City of Marshfield, 203 F.3d 487, 490 (7th Cir. 2000).
Under Article III of the Constitution of the United States, a plaintiff must have standing to bring an action before a federal court. To have standing, the Supreme Court has explained, the plaintiff must allege (1) that he has suffered an injury in fact (2) that is fairly traceable to the action of the defendant and (3) that will likely be redressed with a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Here, the dispute centers on the first element whether the plaintiffs suffered an injury in fact by the City's display of the Ten Commandments on government property.
To allege adequately an injury in fact, a plaintiff must show "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Id. at 560 (citations and quotation marks omitted). In the context of the Establishment Clause, our cases have required that, to allege properly that a plaintiff has suffered an injury in fact from the display of a religious object, the individual may show he has undertaken a special burden or has altered his behavior to avoid the offensive object. See, e.g., Freedom From Religion Found., 203 F.3d at 489 (avoids using the park); Gonzales v. North Township, 4 F.3d 1412, 1416-17 (7th Cir. 1993) (avoids area of the park); Harris v. City of Zion, 927 F.2d 1401, 1405 (7th Cir. 1991) (alters travel routes); Doe v. Village of Crestwood, 917 F.2d 1476, 1478 (7th Cir. 1990) (will stay away from festival); American Civil Liberties Union v. City of St. Charles, 794 F.2d 265, 269 (7th Cir. 1986) (alters behavior by detouring); Doe v. Small, 726 F. Supp. 713, 718-19 (N.D. Ill. 1989), rev'd en banc on other grounds, 964 F.2d 611 (7th Cir. 1992) (avoids using park).
The district court here, however, relied on Doe v. County of Montgomery, 41 F.3d 1156 (7th Cir. 1994), to determine whether the plaintiffs had suffered an injury in fact even though they had not altered their behavior to avoid the Ten Commandments monument. In Doe, a permanent metal sign, hanging over the main entrance of the county's courthouse, read "THE WORLD NEEDS GOD." The plaintiffs were residents of the county and wished to avoid the sign; however, in order to participate as citizens of their county and to fulfill certain legal obligations, they needed to use the courthouse. They alleged that they had to come in direct and unwelcome contact with the sign when using the courthouse. In that case, we held that the plaintiffs' allegations that they must come in direct and unwelcome contact with the religious display to participate fully as citizens of their county and to fulfill their legal obligations were sufficient to show that they had suffered an injury in fact. See id. at 1159. As we stated, "direct and unwelcome exposure to a religious message cannot be distinguished from the 'injuries' of other plaintiffs who have had standing to bring claims under the Establishment Clause." Id. at 1159. We then noted that both the Supreme Court and this court have found standing for constitutional challenges to religious conduct when the plaintiffs did not assume a special burden or alter their behavior. See Lee v. Weisman, 505 U.S. 577 (1992) (student and parent objected to planned invocations and benedictions at non-mandatory graduation ceremonies); Wallace v. Jaffree, 472 U.S. 38 (1985) (school children and parents objected to one-minute period of silence); Stone v. Graham, 449 U.S. 39 (1980) (per curiam) (students and parents objected to posting of Ten Commandments); School Dist. of Abington Township v. Schempp, 374 U.S. 203, 205, 224 n.9 (1963) (school children and parents objected to reading of Bible in school although students could chose to be absent at time or to not participate); Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160, 1164 n.4 (7th Cir. 1993) (parent of school children objected to distribution of Gideon Bibles in the schools); Sherman v. Community Consol. Sch. Dist. 21 of Wheeling Township, 980 F.2d 437, 441 (7th Cir. 1992) (student objected to recitation of Pledge of Allegiance).
The district court followed the holding of Doe and noted that the plaintiffs had alleged that they must come in direct and unwelcome contact with the Ten Commandments monument to participate fully as citizens of Elkhart and to fulfill their legal obligations. The court questioned whether the plaintiffs had to look at the monument to enter the Municipal Building, as the plaintiffs in Doe had to see the sign over the main entrance to enter the county courthouse, but found that the facts were sufficiently close to fit within the rule of Doe. Therefore, the plaintiffs had standing to challenge the placement of the monument in front of the Municipal Building.
The plaintiffs bear the burden of establishing that they have standing to bring this action. See Doe, 41 F.3d at 1159. To meet that burden, plaintiffs Books and Suetkamp both allege that they must come in direct and unwelcome contact with the Ten Commandments monument to participate fully as citizens of Elkhart and to fulfill certain legal duties. Moreover, they each allege specific examples in which they have entered the Municipal Building to participate as a citizen of Elkhart or to fulfill a legal obligation.
According to the City, the plaintiffs must alter their behavior to avoid the Ten Commandments monument before they can allege that they have suffered an injury in fact. In Doe, the City submits, the plaintiffs wished to avoid the religious sign above the courthouse's main entrance but could not do so if they wished to use the courthouse and to participate as citizens of the county. Here, the City argues, the plaintiffs could have entered the Municipal Building through alternative entrances, or, even if entering through the main entrance, they could have passed along the back of the Ten Commandments monument. Because of these two options, the City contends, the plaintiffs did not need to come in direct and unwelcome contact with the text on the Ten Commandments monument in order to participate as citizens of Elkhart or to fulfill their legal obligations. Thus, the City asserts, the plaintiffs have not alleged that they suffered an injury in fact by the placement of the Ten Commandments monument on the lawn of the Municipal Building.
As this court discussed in Doe, the Supreme Court has addressed the requirements for standing when a plaintiff must view a religious symbol in his daily routine or when he is forced to come in contact with religious conduct through participation in school or in government. See Doe, 41 F.3d at 1160. As we demonstrated in Doe, our holding in that case is grounded firmly in the precedent of the Supreme Court. Therefore, we must conclude that the plaintiffs have standing to challenge the placement of the Ten Commandments monument on the lawn of the Municipal Building.
We agree with the district court that there is no principled distinction between the facts of Doe and the facts presented here. In Doe, the plaintiffs were required to come in direct and unwelcome contact with the religious display in order to participate fully in government and to fulfill their legal obligations. Here, the plaintiffs must do the same. Although it is true that the plaintiffs here could have altered their path into the Municipal Building to avoid the monument, an act that would have given them standing under Seventh Circuit precedent, see, e.g., Freedom From Religion Found., 203 F.3d at 489; City of St. Charles, 794 F.2d at 269, they were not obligated to do so to suffer an injury in fact, see Doe, 41 F.3d at 1160- 61. Moreover, because the plaintiffs are aware of the words written on the front of the monument, merely walking behind it will not eradicate the injury they allegedly suffered by passing the TenCommandments monument. We therefore conclude that a plaintiff may allege an injury in fact when he is forced to view a religious object that he wishes to avoid but is unable to avoid because of his right or duty to attend the government-owned place where the object is located. See Doe, 41 F.3d at 1159-61. Therefore, the plaintiffs have alleged sufficient facts to demonstrate that they suffered an injury in fact by the placement of the Ten Commandments monument on the lawn of the Municipal Building.
Although various members of the Supreme Court of the United States have criticized it,6 the test first enunciated by the Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), remains the prevailing analytical tool for the analysis of Establishment Clause claims. As an intermediate federal appellate court, we are obliged by the doctrines of stare decisis and precedent to employ that methodology unless instructed otherwise by the Supreme Court.7 See, e.g., Freedom From Religion Found., 203 F.3d at 493 (emphasizing Lemon test in Establishment Clause analysis); Bridenbaugh v. O'Bannon, 185 F.3d 796, 797 (7th Cir. 1999) (same); Tanford v. Brand, 104 F.3d 982, 986 (7th Cir. 1997) (same); Kerr v. Farrey, 95 F.3d 472, 476- 80 (7th Cir. 1996) (same); Fleischfresser v. Directors of Sch. Dist. 200, 15 F.3d 680, 685-86 (7th Cir. 1994) (same); Sherman, 8 F.3d at 1163-64 (same). Under the approach mandated by Lemon, we must consider: (1) whether the government activity in question has a secular purpose, (2) whether the activity's primary effect advances or inhibits religion, and (3) whether the government activity fosters an excessive entanglement with religion. See Lemon, 403 U.S. at 612-13. Governmental action is violative of the constitutional prohibition against the establishment of religion if it violates any one of these three prongs. See Edwards v. Aguillard, 482 U.S. 578, 583 (1987). In this case, the plaintiffs do not contend that the display of the monument involves an excessive entanglement with religion; therefore, we shall confine our discussion to the first two prongs of the analysis.
Before turning to the situation before us, we also note that, in more recent cases, the Supreme Court has, on occasion, articulated these first two prongs in terms of an "endorsement" test. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 592 (1989) (formally accepting the endorsement test and stating that "[i]n recent years, we have paid particularly close attention to whether the challenged governmental practice either has the purpose or effect of 'endorsing' religion, a concern that has long had a place in our Establishment Clause jurisprudence"); see also Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266, 2278 (2000) (asking whether the state endorsed religion by allowing a student to lead a prayer to open high school football games); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 763-65 (1995) (acknowledging endorsement test but stating that it did not apply in the case at hand because the correct analysis for private religious speech in a public forum was under the Free Speech Clause). As we noted recently in Freedom From Religion Foundation, "[u]nder this test, 'the effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.'" 203 F.3d at 493 (quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring)).
The first part of our inquiry must be to determine whether the display of this tablet by the City of Elkhart has the primary purpose of "advancing or inhibiting religion." Agostini v. Felton, 521 U.S. 203, 222-23 (1997). As the Court has explained, "'The purpose prong of the Lemon test asks whether the government's actual purpose is to endorse or disapprove of religion.'" Aguillard, 482 U.S. at 585 (quoting Lynch, 465 U.S. at 690 (O'Connor, J., concurring)). In determining whether this particular display of the Ten Commandments can be said to have a valid secular purpose, we must evaluate the totality of the circumstances surrounding the placement and maintenance of the monument.
As a starting point, we do not think it can be said that the Ten Commandments, standing by themselves, can be stripped of their religious, indeed sacred, significance and characterized as a moral or ethical document. Indeed, the Supreme Court made this point clear in Stone v. Graham, 449 U.S. 39 (1980), when it noted that a simple reading of the Ten Commandments does not permit us to ignore that they transcend "arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day." Id. at 41-42 (citations omitted). Indeed, when one goes beyond the text itself and regards this particular display, the religious nature of the document is emphasized by the very format of the monument. Notably, the prefatory words "I am the Lord thy God" are set out in large lettering at the top of the text. R.29 & 31, Ex.5. This religious format is enhanced, not detracted from, by the etchings at the bottom of the tablet of the Stars of David and the Chi Rho symbol, a distinctive Christian symbol. It cannot be doubted, therefore, that this monument bearing the Ten Commandments possesses a religious nature.
The display of a religious symbol still may, under certain circumstances, have a secular purpose. The text of the Ten Commandments no doubt has played a role in the secular development of our society and can no doubt be presented by the government as playing such a role in our civic order. For example, on the wall of the Supreme Court there is a frieze that contains Moses holding the Ten Commandments. The frieze contains depictions of two other religious figures, Confucius and Mohammed, but it also includes Caesar Augustus, William Blackstone, Napol on Bonaparte, and John Marshall. Justice Stevens has stated that the placement of all of these historic figures together on the frieze signals a respect for great lawgivers, not great proselytizers. See County of Allegheny, 492 U.S. at 652 (Stevens, J., concurring in part and dissenting in part). This is a fitting message, he tells us, for the wall of a courtroom. See id. at 653. A display is unconstitutional, according to Justice Stevens, "only when its message, evaluated in the context in which it is presented, is nonsecular." Id. at 652. Indeed, the Court in Stone emphasized that the challenged statute that required the posting of the Ten Commandments on schoolroom walls did not present "a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like." 449 U.S. at 42.
The Supreme Court has stressed the importance of the context of a clearly religious symbol in determining whether the purpose in displaying the symbol is religious or secular. We also have emphasized that religious symbols should not be considered in the abstract; instead, courts must ask "whether the particular display at issue, considered in its overall context, could be said to advance religion." American Jewish Congress v. City of Chicago, 827 F.2d 120, 125 (7th Cir. 1987).
Here, the record discloses no significant attempt by the City of Elkhart to present the text of the Ten Commandments in a way that might diminish its religious character.8 Indeed, the history of the City's involvement in the placement of this particular monument serves to emphasize a religious purpose in its display. As we have noted already, the original impetus behind the proliferation of the Ten Commandments monuments was Judge Ruegemer's desire to provide youths with a common code of conduct that they could use to govern their actions. In accepting the monument, the City also aimed to provide a code of conduct for the citizens of Elkhart to follow. The code chosen, however, was a religious code that focuses not only on subjects that are the legitimate concern of civil authorities, but also subjects that are beyond the ken of any government and that address directly the relationship of the individual human being and God. That the purpose was to endorse, through governmental sponsorship, a code of religious values is further established by the program of speakers at the dedication of the monument a Protestant minister, a Catholic priest, and a Jewish rabbi. When these religious leaders spoke, the first speaker urged Americans to accept the precepts of the Ten Commandments because they could provide redemption from strife and fear. The second speaker stated that the Ten Commandments should be engraved not only in stone but in the hearts, minds, and consciences of everyone. Finally, the last speaker recommended that the dedication of the monument should be an occasion for the dedication of everyone to the high ideals inherent in the American way of life. The participation of these influential members of several religious congregations makes it clear that the purpose for displaying the monument was not only to provide youths with a common code of conduct to guide their participation in the civil community but also to urge the people of Elkhart to em brace the specific religious code of conduct taught in the Ten Commandments. Thus, in applying the purpose prong of Lemon, the inherently religious nature of the Ten Commandments is strengthened by the circumstances surrounding the display of the monument. We cannot escape the conclusion that the purpose in displaying this monument was to promote religious ideals.
Moreover, nothing in the subsequent history of the monument can be said to have in any way transformed that religious purpose. The City's resolution, issued on the eve of this litigation and proclaiming a secular purpose for the monument's presence by recognizing the historical and cultural significance of the Ten Commandments, ought to be accorded no more weight than the avowed secular legislative purpose articulated by the Kentucky legislature in Stone. In Stone, the Kentucky statute required the following language at the bottom of each Ten Commandments display: "'The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.'" 449 U.S. at 41 (quoting 1978 Ky. Acts 436, sec. 1, Ky. Rev. Stat. Ann. sec. 158.178 (1980)). The Supreme Court responded to this statement of purpose by stating that "such an 'avowed' secular purpose is not sufficient to avoid conflict with the First Amendment." Id.; see also Santa Fe Indep. Sch. Dist., 120 S. Ct. at 2278 (reiterating that a governmental entity's professed secular purpose for an arguably religious policy is entitled to some deference but that it is the duty of the courts to ensure that the purpose is sincere); Aguillard, 482 U.S. at 586-87 (stating that courts should normally defer to a state's articulation of a secular purpose, but the statement of such purpose must be sincere). As we noted in Gonzales, 4 F.3d at 1419, although this court "will defer to a municipality's sincere articulation of a religious symbol's secular purpose," we shall not accept a stated purpose that merely seeks to avoid a potential Establishment Clause violation. Similarly, we hold that the City of Elkhart's avowed secular purpose of recognizing the historical and cultural significance of the Ten Commandments, issued on the eve of litigation, "is not sufficient to avoid conflict with the First Amendment." Stone, 449 U.S. at 41. We therefore hold that the purpose ofdisplaying the Ten Commandments monument was not secular. The display of the monument, consequently, violates the first prong of the Lemon test and cannot survive Establishment Clause scrutiny.
Even if we were to ignore the primary purpose behind displaying the Ten Commandments monument, we would have to conclude that this particular display has the primary or principal effect of advancing religion. In County of Allegheny, the Court noted that, under this prong, courts have a special responsibility to ensure that a government-sponsored display does not have the purpose or the effect of endorsing a religion. See 492 U.S. at 592. As we noted recently in Freedom of Religion Foundation, "[u]nder this test, 'the effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.'" 203 F.3d at 493 (quoting Lynch, 465 U.S. at 690 (O'Connor, J., concurring)). When employing this analytical approach, we are charged with the responsibility of assessing the totality of the circumstances surrounding the display to determine whether a reasonable person would believe that the display amounts to an endorsement of religion. See County of Allegheny, 492 U.S. at 597 (stating that "the government's use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government's use of religious symbolism depends on its context").
In County of Allegheny, the plaintiffs challenged the recurring holiday displays of a creche placed on the Grand Staircase inside the county courthouse and of a Chanukah menorah placed outside the city-county building. The Court held that the placement of the creche violated the Establishment Clause. The creche in question was surrounded on three sides by a wooden fence. Along the fence sat poinsettias, and on each of the two ends of the fence was a small evergreen tree. A plaque was attached to the fence that announced that the display had been donated by the Holy Name Society. The creche was used as the setting for weekday Christmas caroling by local musical groups. The Court noted that the creche was capable of communicating a religious message, but then explained that "the effect of a creche display turns on its setting" because "the context of the display [could] detract[ ] from the creche's religious message." Id. at 598. In assessing the context surrounding the creche in County of Allegheny, the Court determined that nothing detracted from its religious message. The floral border drew one's attention to the display, and the fact that traditional Christmas flowers were used further contributed to the perception of the endorsement of religion by the government. The sign disclosing ownership by a Catholic organization further enhanced the perception that the government was promoting a religious message. The Court also noted that the creche was displayed on the main and most beautiful part of the building and that the building served as the seat of government. According to the Court, "[n]o viewer could reasonably think that it occupies this location without the support and approval of the government." Therefore, concluded the Court, "by permitting the 'display of the creche in this particular physical setting,' the county sends an unmistakable message that it supports and promotes the Christian praise to God that is the creche's religious message." Id. at 599-600 (quoting Lynch, 465 U.S. at 692 (O'Connor, J., concurring)). The Court therefore held that the creche display violated the Establishment Clause.
In County of Allegheny, a majority of the Court also held that the menorah placed in front of the city-county building did not violate the Establishment Clause. The menorah was placed next to a 45-foot pine tree that was decorated with lights and ornaments. At the foot of the tree rested a sign that bore the mayor's name and a text that was entitled "Salute to Liberty." The Court held that this particular display was not a violation of the Establishment Clause because its specific setting did not have the primary effect of endorsing religion. Instead, the Court stated that the combination of the now- secularized Christmas tree with a sign extolling liberty and the giant menorah tended to promote the winter-holiday season. The display, held the Court, did not violate the Establishment Clause.
In fulfilling our responsibility to apply faithfully the Establishment Clause jurisprudence of the Supreme Court of the United States, we have subjected to particularly careful scrutiny displays at the seat of government. We have taken this course because "[a]n important concern of the effects test is . . . 'whether the symbolic union of church and state effected by the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.'" American Jewish Congress, 827 F.2d at 127 (quoting Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 390 (1985)). In American Jewish Congress, the City of Chicago had displayed a creche during the holiday season in the lobby of the city-county building. We noted that the seat of government is "a setting where the presence of government is pervasive and inescapable." Id. at 126. We then held that the display violated the second prong of Lemon "[b]ecause City Hall is so plainly under government ownership and control, every display and activity in the building is implicitly marked with the stamp of government approval." Id. at 128. In that case, the presence of the creche in the lobby of the seat of government created "a clear and strong impression that the local government tacitly endorse[d] Christianity." Id.
We reiterated this principle in Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991). In City of Zion, the plaintiffs challenged the seal of two cities because they contained symbols of Christianity, the Latin cross. We stated that the cities' seals containing the Latin cross presented unambiguous endorsements of religion in violation of the Establishment Clause. See id. at 1412. "Depicting these patently religious symbols on a corporate seal that is wholly owned and controlled by the City connotes the City's approval for the message conveyed." Id. at 1414. This endorsement, we held, violated the Establishment Clause. Moreover, we noted, the finding of a constitutional violation was even more compelling in this situation because the seals were "a permanent statement that [was] viewed year-round." Id. at 1412.
In assessing the situation before us, we must ask whether an objective observer familiar with the history and placement of the Ten Commandments monument would perceive it as a state endorsement of religion. See Santa Fe Indep. Sch. Dist., 120 S. Ct. at 2278. We note first that the monument is displayed at the seat of government. As we have just explained, the seat of government "is so plainly under government ownership and control" that every display on its property is marked implicitly with governmental approval. American Jewish Congress, 827 F.2d at 128. Here, in front of the building that houses the governmental departments of the City, stands a religious message. This granite monument is a permanent fixture on the grounds of the seat of government. As viewed by the passer-by or by an individual approaching the building, the monument certainly cannot be fairly characterized as a component of a comprehensive display of the cultural heritage of the people of Elkhart. Rather, it stands, as the City intended it to be when it dedicated the monument on Memorial Day in 1958, as a sole and stark reminder of the specific injunctions contained in the Commandments. Indeed, the surrounding area enhances the dignity and the primacy of the Commandments. Above the door of the Municipal Building are the Latin words "Dedicatum Justitia." Those who view the Ten Commandments are thus informed that the role of the government in that location is to do justice; the only "law" displayed for doing justice is the monument bearing the Ten Commandments. The only other display on the lawn of the Municipal Building is the War Memorial that reminds the onlooker that the space in front of the Municipal Building is "hallowed ground." R.29 & 31, Ex.25.9 The person approaching the seat of government is thus informed that, at that location, the government goes about the business of doing justice, that the only "law" displayed is the Commandments, and that these Commandments are displayed on land designated by the government as "hallowed ground."
The format of the monument itself hardly dilutes its religious message. Indeed, this monument impermissibly suggests that, in this community, there are "ins" and "outs." The monument contains the Stars of David and the symbol of Christ, representing respectively Judaism and Christianity, two of the religions no doubt particularly represented in the Elkhart community, but by no means the total of all those who depend on the City of Elkhart as their local government. The Supreme Court has cautioned that government "sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents 'that they are outsiders, not full members of the political community, and the accompanying message to adherents that they are insiders, favored members of the political community.'" Santa Fe Indep. Sch. Dist., 120 S. Ct. at 2279 (quoting Lynch, 465 U.S. at 688 (O'Connor, J., concurring)).
In this regard, the placement of the American Eagle gripping the national colors at the top of the monument hardly detracts from the message of endorsement; rather, it specifically links religion, or more specifically these two religions, and civil government. See City of Zion, 927 F.2d at 1412 (holding that a Latin cross surrounded by other symbols of city life on the city's corporate seal only served to show that the city approved of certain aspects of city life, among them Christianity).
Finally, we cannot say that the monument's acknowledgment of two religious traditions, rather than one, renders the situation before us in compliance with the strictures of the Constitution. "The simultaneous endorsement of Judaism and Christianity is no less constitutionally infirm than the endorsement of Christianity alone." County of Allegheny, 492 U.S. at 615. Although Elkhart's Ten Commandments monument does not endorse Christianity only, it confines its approval to the Judeo-Christian faiths. As the Supreme Court has stated, the First Amendment is "recognized as guaranteeing religious liberty and equality to 'the infidel, the atheist, or the adherent of a non- Christian faith such as Islam or Judaism.'" Id. (quoting Wallace, 472 U.S. at 52). Accordingly, we hold that the primary effect of the Ten Commandments monument on the property of the City of Elkhart's Municipal Building is to advance or endorse religion. The display, consequently, fails the second prong of the Lemon test and violates the Establishment Clause.
This case was decided by the district court on cross-motions for summary judgment. Now that we have reversed the district court's grant of summary judgment for the defendants, the district court ought to enter summary judgment for the plaintiffs. The district court must then turn to the question of remedy. In fashioning a remedy, the district court must be guided by the basic rule that the nature of the remedy ought to be determined by the nature and the scope of the constitutional violation. See Milliken v. Bradley, 433 U.S. 267, 280 (1977). It must also proceed in a manner that respects the interests of state and local authorities to manage their own affairs in a manner consistent with the Constitution of the United States. See id. at 280-81.
In crafting equitable relief to comply with our judgment today, the district court must ensure that, although the con dition that offends the Constitution is eliminated, Elkhart retains the authority to make decisions regarding the placement of the monument. In making those decisions, Elkhart has the right and, indeed, the obligation to take into consideration the religious sensibilities of its people and to accommodate that aspect of its citizens' lives in any way that does not offend the strictures of the Establishment Clause. Cf. Zorach v. Clausen, 343 U.S. 306, 313 (1952) ("We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group."). Arriving at a realistic solution that comports with the strictures of the Establishment Clause will no doubt take some time, and the district court ought to ensure that Elkhart authorities have a reasonable time to address in a responsible and appropriate manner the task of conforming to the letter and spirit of the constitutional mandate.
Cases involving religion pose difficult questions for courts. "Since undoubtedly we are a 'religious people whose institutions presuppose a Supreme Being,' deep feelings are aroused when aspects of that relationship are claimed to violate the injunction of the First Amendment that government may make 'no law respecting an establishment of religion, or prohibiting the free exercise thereof.'" Schempp, 374 U.S. at 230 (Brennan, J., concurring) (citation omitted). This is especially true of cases that require enforcement of the Establishment Clause because that Clause often requires a restriction on religious activity on the part of a government entity and is therefore misperceived as restricting the ability of the community to acknowledge the religious commitment of its people. As our discussion today makes clear, the scope of our Establishment Clause jurisprudence is far more circumscribed. Rather, the Supreme Court's cases, and the decisions of our court in conformity with those precedents of the High Court, simply prevent government at any level from intruding into the religious life of our people by sponsoring or endorsing a particular perspective on religious matters. It prevents, as Justice O'Connor has pointed out, government from creating among our people "ins" and "outs" on the basis of religion. In this latter respect, it acknowledges the very unique religious nature of our people. Few of us can look too far back in our personal histories--and the Country certainly cannot ignore the circumstance of its own birth--without acknowledging that our ancestors were people who suffered significantly because of their religious belief and who were ostracized by their national communities or made to suffer poverty or even worse because of their religious beliefs. As one visitor to our shores, himself a refugee from Nazi tyranny, put it, Americans can all say, "We are bruised souls." We each carry "the wounds and sorrows of ancestors, and that memory of the sufferings caused by persecution and prejudice which they left to their progeny" is our "spiritual patrimony."10 The Establishment Clause acknowledges that "spiritual patrimony" and requires that we exercise, in our governmental manifestations of the religious nature of our people, a self- restraint that will prevent anyone from becoming in the eyes of our governmental system--an "out" on the basis of religious beliefs.
Accordingly, the judgment of the district court is reversed, and the case is remanded for proceedings in conformity with this opinion.
REVERSED and REMANDED
Both the Ten Commandments monument and the War Memorial are approxi- mately the same distance from the main entrance and from the sidewalks. The Ten Commandments monument is 46 feet from the main entrance and 10 feet from the sidewalk, and the War Memorial is 48 feet from the main entrance and 10 feet from the sidewalk. Both are partially shaded by trees.
The all-seeing eye on the monument is similar to the one depicted on the one-dollar bill.
The district court also analyzed the placement of the Ten Commandments under several other "tests." Because we believe that the Lemon test, as refined by Supreme Court precedent, stillcontrols our Establishment Clause jurisprudence, we will not discuss the other tests mentioned by the district court.
See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266, 2284-85 (2000) (Rehnquist, C.J., dissenting) (stating that "Lemon has had a checkered career in the decisional law of this Court" and collecting opinions criticizing Lemon); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 398-99 (1993) (Scalia, J., concurring in judgment) (comparing Lemon to "some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried" and then collecting opinions criticizing Lemon); County of Allegheny, 492 U.S. at 655-56 (Kennedy, J., concurring in the judgment in part and dissenting in part) (stating that, although he found the Lemon test useful in judging the constitu- tionality of holiday displays, he did "not wish to be seen as advocating, let alone adopting, that test as our primary guide in this difficult area"); Committee for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (Stevens, J., dissenting) (desiring to avoid "continuing with the sisyphean task of trying to patch together the 'blurred, indistinct, and variable barrier' described in Lemon" (citation omitted)).
See State Oil v. Kahn, 522 U.S. 3, 20 (1997) (stating that the "Court of Appeals was correct in applying [the doctrine of stare decisis] despite disagreement with [a prior Supreme Court opinion], for it is this Court's prerogative alone to overrule one of its precedents"); Agostini v. Felton, 521 U.S. 203, 217 (1997) (reminding appellate courts that "the views of five Justices that [a] case should be reconsidered or overruled cannot be said to have effected a change in Establishment Clause law"); see also DeWalt v. Carter, 224 F.3d 607, 617 n.5 (7th Cir. 2000).
Given the obvious religious nature of the text itself, it falls to the City of Elkhart to demonstrate that it has taken steps to "obviate its religious purpose." Gonzales v. North Township, 4 F.3d 1412, 1421 (7th Cir. 1993); see also Bridenbaugh v. O'Bannon, 185 F.3d 796, 798 (7th Cir. 1999); Metzl v. Leininger, 57 F.3d 618, 621 (7th Cir. 1995).
As stated above, the Freedom Monument reads: "BEHOLD FRIEND, YOU ARE NOW ON HALLOWED GROUND FOR HERE BURNS FREEDOMS HOLY LIGHT." R.29 & 31, Ex.25.
Jacques Maritain, Reflections on America 83-84 (1958).
[Tabular or Graphical Material Omitted][Tabular or Graphical Material Omitted][Tabular or Graphical Material Omitted]
MANION, Circuit Judge, concurring in part and dissenting in part.
The court sets out an accurate presentation of the facts at issue in this case. Suffice it to say that in a Memorial Day ceremony in 1958 the Fraternal Order of the Eagles presented to the City of Elkhart a stone monument engraved with a version of the Ten Commandments. The City placed it near the north entrance of the City Hall building where it has remained to this day. The plaintiffs claim that the location of the monument is offensive to them and an unconstitutional endorsement of religion by the City.
I agree with the court's analysis regarding the plaintiffs' standing to challenge the constitutionality of the placement of the Ten Commandments monument. And while I also agree with the court's legal summary of the Lemon test, I disagree with its application of Lemon to the facts before us. Rather, applying Lemon and its progeny should lead to the conclusion that the City of Elkhart does not violate the Establishment Clause by leaving undisturbed a monument inscribed with the Ten Commandments that was erected more than forty years ago. Moreover, even if the monument did not satisfy the Lemon test, the Supreme Court has upheld certain religious practices which have become a part of the fabric of our society. Leaving the Ten Commandments monument where it now stands comfortably falls within the historical context of this country and is thus constitutional even though it retains the unequivocal references to God. I therefore CONCUR in part and DISSENT in part.
A. Lemon Test
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court adopted a three-part test for analyzing Establishment Clause cases. First, the government's challenged practice must have a secular purpose. Second, the principal or primary effect must be one that neither advances nor inhibits religion. Third, the government's practice must not create an excessive entanglement of religion. As noted by the court, the third prong is not at issue. Accordingly, we focus on the first two prongs of the Lemon test.