John Ellis Briggs, Plaintiff-appellant, v. State of Mississippi, Defendant-appellee, 331 F.3d 499 (5th Cir. 2003)

Appellant Briggs's pro se complaint, filed June 29, 2001, alleged that Mississippi violated the Establishment Clause of the First Amendment by using public property and funds to fly the state flag in that the flag's union or canton square is the Confederate battle flag which displays "the St. Andrew's Cross (or Southern Cross), long regarded by many to reflect a particular religious heritage," and this was offensive to Briggs as he was "a Miracle Muslim." The only defendant mentioned in the complaint is the State of Mississippi. The relief requested was that "a just inquiry be made to determine whether a religious symbol, namely the St. Andrew's Cross, should be removed from display on public property" and that "the State of Mississippi... be made to compensate me by paying punitive damages not to exceed $77.77 million (US)."

The State moved to dismiss on the basis of the Eleventh Amendment and because the complaint did not state a constitutional violation.

On November 14, 2001, Briggs, through counsel, filed a response to the motion to dismiss.

On December 19, 2001, Briggs, through counsel, filed a motion for leave to amend the complaint. The tendered amended complaint names as defendants only the State of Mississippi and "Ronnie Musgrove." The only allegation concerning Musgrove is that he "is the governor for the State of Mississippi." All other allegations are as to the state defendant, e.g., "Defendant, State of Mississippi, has willfully and maliciously used public property and public funds to display a religious symbol, namely, the St. Andrew's (or Southern Cross), long regarded by many to reflect a particular religious heritage." The amended complaint alleges that "the display of the St. Andrew's Cross in the canton of the Mississippi State flag is a violation of his [plaintiffs] Constitutional rights." The relief sought is "a declaratory judgment mandating that the religious symbol, namely the St. Andrew's Cross, be removed from display in public places," "a declaratory judgment mandating that the Defendant, State of Mississippi, found to be in violation of the First Amendment," "compensatory damages in the amount not to exceed 77.77 Million Dollars," and reasonable attorney fees and costs.

On August 12, 2002, the district court entered its memorandum opinion and final judgment, granting the State's motion to dismiss, denying Briggs's motion for leave to amend, and dismissing the case.

Discussion

Briggs appeals, raising three issues Eleventh Amendment

Briggs first argues that the district court erred in determining that the Eleventh Amendment barred him from seeking damages and equitable relief against Mississippi. We reject that contention. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 908-09, 79 L. Ed. 2d 67 (1984). As we said in Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183 (5th Cir. 1986), the Eleventh Amendment bars suit against a state or "state entity, as opposed to a state official, regardless of whether money damages or injunctive relief is sought" and section 1983 does not override the Eleventh Amendment.

Establishment Clause

Second, Briggs argues that the district court erred in holding that Mississippi's use of the St. Andrew's Cross on the state flag does not constitute a violation of the Establishment Clause.

The Mississippi state flag indisputably has the Confederate battle flag as its union or canton corner or square. See, e.g., Mississippi Division of United Sons v. MS. NAACP, 774 So. 2d 388, 390 (Miss.2000) ("While the State Flag is not simply a Confederate Battle Flag, the part of the State Flag found objectionable by the NAACP and others is the depiction of such Confederate flag in the State Flag's canton corner"). The flag was adopted in 1894, when the Mississippi legislature approved the committee report which

"... recommend for the flag one with width two-thirds of its length; with the union square, in width two-thirds of the width of the flag; the ground of the union to be red and broad blue saltier¹  thereon, bordered with white and emblazoned with thirteen (13) [mullets]²  or five-pointed stars, corresponding with the number of the original States of the Union, the field to be divided into three bars of equal width, the upper one blue, the center one white and the lower one, extending the whole length of the flag, red — the national colors; the staff surmounted with a spear head and a battle-axes below; the flag to be fringed with gold and the staff gilded with gold." Id. at 391 (emphasis added).

However, in 1906 that 1894 legislation adopting the flag was (apparently inadvertently) repealed by the general repeal of all laws not included in the then enacted codification. Id. Nevertheless the 1894 flag continued to be flown as the state flag of Mississippi "by custom and usage." Id. at 391-92.

As reflected by, inter alia, the decisions in Mississippi Div. of United Sons and Daniels v. Harrison County Bd. of Supervisors, 722 So. 2d 136 (Miss.1998), the flying of the Confederate Battle Flag (alone or as incorporated in the canton square of what was assumed to be the official state flag) aroused heated controversy between those for whom it "commemorate [d] the sacrifice made in support of the cause of the Confederacy" and those for whom it was an offensive "symbol of white supremacy" or oppression. Daniels at 139 (Banks, J., concurring); see also id. at 141. Following the decision in Mississippi Div. of United Sons that there was no official state flag, the controversy became more active and public. In January 2001 the Mississippi Legislature enacted legislation providing that the state flag would be determined by an election to be held April 17, 2001, at which the voters would choose between two described flags, one being the identical 1894 flag and the other being a flag similar in all respects to that of 1894 except for its canton corner which would consist entirely of a blue ground (white bordered on its bottom and fly sides) with a circle of thirteen stars containing an inner circle of six stars with one large star in its middle.³  The voters chose the 1894 flag.⁴ 

While nothing in the 1894 legislation or the 2001 legislation, and nothing in their legislative histories of which we are aware, nor anything in any of the cited decisions of the Mississippi courts, refers to the St. Andrew's Cross, we recognize that the Confederate Battle Flag has frequently been described as containing a St. Andrew's Cross. See, e.g., Coleman v. Miller, 885 F. Supp. 1561, 1564 (N.D. Ga. 1995) ("During the Civil War, the Confederacy adopted a square battle flag depicting a blue St. Andrew's Cross on a red field;" with picture of flag). We also recognize that St. Andrew is a religious figure, he, along with his brother Peter, being one of the twelve apostles of Christ and whose Christian ministry is recounted in the New Testament. The connection between the emblem on the Confederate Battle flag and St. Andrew is, however, another matter. Material attached to Briggs's complaint states the following (none of which we dispute):

"The letter `X' when positioned on its side is commonly known as the Cross of St. Andrew and dates back to early Christian history.

As recorded in the Holy Scriptures, Andrew was born in the city of Bethsaida on the north shore of Galilee (John 1:44), but lived in nearby Capernaum (Mark 1:21, 29). He worked with his brother Simon Peter as a fisherman.... Later on, Jesus called both Andrew and his brother Simon Peter to leave their fishing business and become His disciples (Mark 1:16-18). Andrew became one of the twelve apostles of our Lord and was active in the establishment of the early Christian Church in Palestine (Acts 1:13).

Tradition says that Andrew was responsible for spreading the Christian Faith throughout Asia Minor and Greece. For his fervent preaching and testimony of Jesus Christ, he was put to death by the Romans when he was around 85 years old in AD 69 in the city of Patras, Greece by being pinned to a cross. At his own request, the cross was turned on its side because he felt he was not worthy to be crucified like his Lord.... Legend says that either a Greek monk or an Irish assistant of St. Columba called St. Rule was warned in a dream to remove the remains of St. Andrew to the `ends of the earth' for safekeeping. This he did and was shipwrecked on the east coast of Scotland at the location which is now known as St. Andrews. Another legend says that Acca, the Bishop of Hexham, a collector of relies brought the bones of St. Andrew to an existing religious center at St. Andrews, Scotland in AD 733. This became Scotland's first association with St. Andrew. After the battle with the Northumbrians of England in AD 832, the Scots adopted him as their patron Saint and the saltire as the symbol for their national flag. For hundreds of years, brave Scottish warriors have fought under this noble banner.

This same symbol is also known as Jacob's Cross. It represents the blessing of the patriarch Jacob/Israel when he crossed his arms and blessed the two sons of Joseph (Genesis 48:8-22).

Around 600 BC, the Greeks designated 'X' as the letter `chi' in their alphabet which in New Testament times came to represent Christ. Therefore, the letter X, when used alone or in combination with other letters, often stands for the word Christ, as in Xmas." (italics added).

We are unable to accept, however, that every X, or every X the straight-line connection of whose four points would form a square, is predominately a religious symbol.⁵ 

We have noted three different tests used to determine whether governmental action violates the Establishment Clause. See Freiler v. Tangipahoa Parish Bd., 185 F.3d 337, 343 (5th Cir. 1999).

One of these tests is "the coercion test" which "analyzes school-sponsored religious activity in terms of the coercive effect that the activity has on students." Id. That test is facially inapplicable here. Moreover, the mere display on public property of the state flag, or the use of public funds for that purpose, is in no meaningful sense either a religious activity or coercive. See, e.g., Coleman v. Miller, 117 F.3d 527 (11th Cir. 1997) (Georgia state flag incorporating the Confederate Battle flag); N.A.A.C.P. v. Hunt, 891 F.2d 1555 (11th Cir. 1990) (Confederate flag flown on Alabama capitol dome); Mississippi Div. of United Sons; Daniels. See also, e.g., Murray v. City of Austin, 947 F.2d 147 (5th Cir. 1991).

The tests more relevant here are those of Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), and the "endorsement test." Freiler at 343. Under the former, "a state practice is unconstitutional if (1) it lacks a secular purpose; (2) its primary effect either advances or inhibits religion; or (3) it excessively entangles government with religion." Id. " [T]he endorsement" test "seeks to determine whether the government endorses religion by means of the challenged action." Id.

Plainly, Lemon's first prong is fully satisfied here. To the extent that a religious symbol — the St. Andrew's Cross — is displayed, it is displayed only insofar as it is included within the Confederate Battle flag which forms the union or canton corner of the Mississippi state flag. It is obvious — and Briggs does not allege otherwise — that at least a purpose of having the Confederate Battle flag as the canton corner of the Mississippi state flag is and was secular.⁶  As stated in Hunt, " [i]t is clear that whether the [Confederate] flag was hoisted to decry integration or to recognize history, the purpose in its hoisting was secular." Id.at 1564. It is similarly clear that Lemon's third prong — that the challenged action not excessively entangle government with religion — is likewise satisfied here. As reflected by materials attached to Briggs's complaint, the State of Mississippi did not design the Confederate Battle flag. In 1894 (and again in 2001, when the State, in essence, declined to change the flag it had consistently flown for over a century), Mississippi merely prescribed as the canton corner of the State flag the identical design which had been created by Confederate generals Beauregard and Joseph E. Johnson in 1861, and thereafter had been used by Confederate forces throughout the Civil War and became well known at least throughout the South. These one time, isolated decisions, and the flying of the state flag pursuant thereto, do not comprehend, require or lead to any involvement by the government with any religious institution or group or any interaction between the government and any such institution or group.

We turn now to the second prong of the Lemon test and to the related endorsement test. We have suggested that these tests are similar. Freiler at 346. As the Eleventh Circuit stated in respect to Alabama's flying of the Confederate flag " [i]t is also clear that the primary effect of the flag is not to promote religion; rather it is to remind citizens, albeit offensively to some, of a controversial era in American history." Hunt at 1564. It is common knowledge that public reaction to and the debate over the flying of the Confederate Battle flag, or its being a part of a state nag, has been virtually exclusively in relation to its symbolism of the Confederacy and the valor of its troops and whether or to what extent this symbolism extols or excuses slavery, racial oppression or resistance to racial equality. None of this concerns any religious symbolism related to any presence of the St. Andrew's Cross in the flag.⁷  Neither the endorsement test nor the second prong of Lemon is violated where any endorsement of or benefit to religion by the challenged governmental action is merely "indirect, remote, or incidental." Lynch v. Donnelly 465 U.S. 668, 104 S. Ct. 1355, 1364, 79 L. Ed. 2d 604 (1984) (internal quotation marks omitted). In making this determination we focus on the display as an entirety, and on its contextual history, not merely on the portion of the display claimed to constitute a religious symbol. Lynch at 1360-61, 1364; Murray at 154-55. Merely because "some observers may perceive that the" government "has aligned itself with the Christian faith by" the presence of a St. Andrew's Cross within the flag does not suffice to make out a Lemon or endorsement test violation. Lynch at 1364; Capitol Square Review And Advisory Bd. v. Pinette, 515 U.S. 753, 115 S. Ct. 2440, 2455, 132 L. Ed. 2d 650 (1995) (O'Connor, J., concurring) (rejecting view that "a religious display is necessarily precluded so long as some passerby would perceive a governmental endorsement" of religion). As Justice O'Connor explained in Capitol Square:

"... the endorsement test creates a more collective standard to gauge `the "objective" meaning of the [government's] statement in the community,' Lynch, supra, at 690, 104 S. Ct., at 1368 (O'CONNOR, J., concurring). In this respect, the applicable observer is similar to the `reasonable person' in tort law, who `is not to be identified with any ordinary individual, who might occasionally do unreasonable things,' but is `rather a personification of a community ideal of reasonable behavior, determined by the [collective] social judgment.' W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 175 (5th ed.1984). Thus, `we do not ask whether there is any person who could find an endorsement of religion, whether some people may be offended by the display, or whether some reasonable person might think [the State] endorses religion.' Americans United, 980 F.2d at 1544.... There is always someone who, with a particular quantum of knowledge, reasonably might perceive a particular action as an endorsement of religion. A State has not made religion relevant to standing in the political community simply because a particular viewer of a display might feel uncomfortable.

It is for this reason that the reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious display appears.... Nor can the knowledge attributed to the reasonable observer be limited to the information gleaned simply from viewing the challenged display." Id. at 2455 (O'Connor, J., concurring).

It is clear to us that, as a matter of law, despite what Briggs himself or some others might perceive, the objective meaning in the community of Mississippi's display of its flag is not the State's endorsement of religion or any particular religion, and that any endorsement of or benefit to religion from that display is at most indirect, remote and incidental. The flag fails neither the second prong of Lemon nor the endorsement test.

We have held that governmental display of symbols which were more obviously and directly religious did not violate the Establishment Clause. In Murray we sustained summary judgment dismissal of an Establishment Clause claim predicated on Austin's official insignia (displayed on its vehicles, letterhead, uniforms and some of its buildings) containing the coat of arms of its founder, Stephen F. Austin, which included the Christian cross used only by the Roman Catholic denomination and which is in a far more unique form than the objected to X form within the Confederate Battle flag. See id. at 150, 159.⁸  See also, e.g., O'Hair v. Blumenthal, 588 F.2d 1144 (5th Cir. 1979), in which we affirmed, on the basis of the district court's opinion, O'Hair v. Blumenthal, 462 F. Supp. 19 (W.D. Tex. 1978), the grant of a motion to dismiss for failure to state a claim of a suit raising an Establishment Clause challenge to our national motto "In God We Trust" and its appearance on our coins. The same holding was made by the Tenth Circuit in Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996).

We hold that the Mississippi flag does not violate the Establishment Clause.

Leave to Amend

Finally, Briggs asserts that the district court abused its discretion in denying his motion for leave to amend his complaint. The district court did not abuse its discretion because, for the reasons above stated, the proposed amended complaint could not survive a Fed. R. Civ. P. 12(b) (6) motion and allowing Briggs to amend the complaint would be futile. See Lewis v. Fresne, 252 F.3d 352, 360 n. 7 (5th Cir. 2001).⁹ 

AFFIRMED.