Public displays of affection... for god: Religious monuments after McCkeary and van orden

Harvard Journal of Law and Public Policy

Volumn 32, Issue 1, 2009, Pages 231-260

  Clement, Edith Brown ^a  

^a United States Court of Appeals for the Fifth Circuit ^*  (United States)

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EID: 63849244852     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (221)

1. 545 US. 844 (2005).
2. 545 U.S. 677 (2005).
3. Posting of Eugene Volokh to The Volokh Conspiracy, http://volokh.com/ archives/ archive-2004-10-17-2004-10-23.shtml#1098403243 (Oct. 21, 2004, 20:00 EDT) (quoting Mark Stancil) (name substitution in original).
4. See generally Michael W. McConnell, Why Is Religious Liberty the "First Freedom"?, 21 CARDOZO L. REV. 1243 (2000).
5. 449 U.S. 39 (1980).
6. See id. at 40.
7. See id. at 41 ("The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.").
8. See, e.g., Van Orden v. Perry, 545 U.S. 677, 699 (2005) (Breyer, J., concurring) ("Neither can this Court's other tests readily explain the Establishment Clause's tolerance, for example, of... the public references to God on coins, decrees, and buildings ....").
9. See, e.g., ACLU Neb. Found, v. City of Plattsmouth, 419 F.3d 772, 778 (8th Cir. 2005) (upholding a display identical to the display struck down in McCreary, based on its less contentious history).
10. See Staley v. Harris County, 461 F.3d 504, 513-14 (5th Cir. 2006) (holding that an originally constitutional memorial erected in the 1950s acquired an unconstitutional purpose when it was refurbished in 1995), abrogated by 485 F.3d 305, 314 (5th Cir. 2007).
11. Compare Buono v. Kempthorne, 502 F.3d 1069, 1085-86 (9th Cir. 2007) (holding that a cross erected as a war memorial in 1934 was now an unconstitutional establishment of religion even though the government acted to transfer the land to a private organization), with Access Fund v. U.S. Dep't of Agric., 499 F.3d 1036, 1045-46 (9th Cir. 2007) (upholding Forest Service regulations protecting a religiously significant rock formation and stating that just because "a group of religious practitioners benefits in part from the government's policy does not establish endorsement").
12. See McCreary County v. ACLU, 545 U.S. 844, 861-62 (2005) (stating that discerning a display's "purpose" is an important component of Establishment Clause jurisprudence and within the competency of appellate courts); Selman v. Cobb County Sch. Dist., 449 F.3d 1320, 1322 (11th Cir. 2006) (remanding for further factfinding in light of McCreary); Soc'y of Separationists v. Pleasant Grove City, 416 F.3d 1239, 1240-41 (10th Cir. 2005).
13. See McCreary, 545 U.S. at 850.
14. See id. at 859 (citing Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)).
15. Lemon, 403 U.S. at 612-13 (citation and quotation marks omitted).
16. McCreary, 545 U.S. at 861.
17. See id. at 861-62.
18. Id. at 864.
19. See id.
20. Id. at 901-02 (Scalia, J., dissenting).
21. Id. at 902 (citing Edwards v. Aguillard, 482 U.S. 578, 589 (1987)).
22. Id. at 902.
23. Id.
24. See, e.g., Selman v. Cobb County Sch. Dist., 449 F.3d 1320, 1322 (11th Cir. 2006) (citing McCreary);
25. Soc'y of Separationists v. Pleasant Grove City, 416 F.3d 1239, 1240-41 (10th Cir. 2005) (citing McCreary and Van Orden v. Perry, 545 U.S. 677 (2005)).
26. McCreary, 545 U.S. at 862.
27. Id. at 900-01 (Scalia, J., dissenting).
28. Id. at 901.
29. Id. at 866 n.14 (majority opinion).
30. See ACLU v. Mercer County, 432 F.3d 624, 626 (6th Cir. 2005).
31. See McCreary, 545 U.S. at 851-57.
32. See id. at 868-73.
33. See id. at 851-52.
34. Id. at 868.
35. Id.
36. Id. at 869.
37. Id.
38. See id.
39. See id. at 869-70.
40. Id. at 853 (alterations in original) (citation omitted).
41. Id. at 870.
42. Id.
43. Id. at 870-71.
44. Id. at 871.
45. See id. at 871-72.
46. See id. at 871.
47. See id. at 871 & n.19, 872.
48. See id. at 872.
49. Id.
50. Id. at 873 (internal quotation marks omitted).
51. Id.
52. See generally GERARD V. BRADLEY, RELIGIOUS LIBERTY IN THE AMERICAN REPUBLIC (2008).
53. See McCreary, 545 U.S. at 873-74.
54. See id. at 873.
55. See id. at 874.
56. Van Orden v. Perry, 545 U.S. 677, 681 (2005).
57. Id. at 681.
58. Id. (internal quotation marks omitted).
59. See id. at 681-82.
60. See id. at 712-13 (Stevens, J., dissenting).
61. Id. at 713.
62. See id. at 701 (Breyer, J., concurring in the judgment);
63. id. at 713 (Stevens, J., dissenting).
64. Brief for Fraternal Order of Eagles as Amicus Curiae Supporting Respondents at 4, Van Orden, 545 U.S. 677 (No. 03-1500)..
65. See Van Orden, 545 U.S. at 682 (Breyer, J., concurring in the judgment).
66. Id. at 681 (Rehnquist, C.J., plurality opinion).
67. Id. at 692 (Scalia, J., concurring);
68. id. at 692 (Thomas, J., concurring).
69. Id. at 698 (Breyer, J., concurring in the judgment).
70. Id. at 707 (Stevens, J., dissenting);
71. id. at 737 (O'Connor, J., dissenting);
72. id. (Souter, J., dissenting).
73. Id. at 698 (quoting Sch. Dist. of Abington v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring)).
74. Id. (citing Zelman v. Simmons-Harris, 536 U.S. 639, 717-29 (2002) (Breyer, J., dissenting)).
75. Id. (citing ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 282-83 (H. Mansfield & D. Winthrop trans. & eds., 2000) (1835)).
76. See PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE 481 (2002) (arguing that "the constitutional authority for separation is without historical foundation"). Professor Hamburger observes that the concept of "separation between church and state" arose not from any authoritative constitutional source, but rather from an 1802 letter from Thomas Jefferson to the Danbury, Connecticut Baptist Association.
77. See id. at 1-3. Though cited in the federal polygamy-law case of Reynolds v. United States, 98 U.S. 145, 164 (1878), the phrase did not become the clear basis for a Supreme Court Establishment Clause decision until Justice Black famously wrote in Everson v. Board of Education, 330 U.S. 1 (1947) - a case that, interestingly enough, approved public aid for busing to religious schools - that "[t]he First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."
78. Id. at 18;
79. see HAMBURGER, supra, at 454-55;
80. see also Wallace v. Jaffree, 472 U.S. 38, 91-114 (1985) (Rehnquist, J., dissenting) (offering a similar critique).
81. See Van Orden, 545 U.S. at 698-99 (Breyer, J., concurring in the judgment).
82. Id. at 699.
83. McCreary County v. ACLU, 545 U.S. 844, 860 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)).
84. See Van Orden, 545 U.S. at 699 (Breyer, J., concurring in the judgment).
85. Id. (quoting Sch. Dist. of Abington v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring)).
86. Id. at 699-700 (citing Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)).
87. Id. (citing Lynch v. Donnelly, 465 U.S. 668, 687-88, 692, 694 (O'Connor, J., concurring)).
88. See Van Orden, 545 U.S. at 699 (Breyer, J., concurring in the judgment).
89. Id. at 700.
90. See id.
91. Id. at 701.
92. Id.
93. Id. at 702.
94. Id.
95. Id. at 703.
96. Id.
97. Id. at 704.
98. Id.
99. In Lemon, for example, Chief Justice Burger asserted that the school subsidies at issue were an excessive entanglement in part because of their "divisive political potential." Lemon v. Kurtzman, 403 U.S. 602, 622 (1971).
100. For a thorough discussion of the history of the divisiveness argument, see Richard W. Garnett, Religion, Division, and the First Amendment, 94 GEO. L.J. 1667, 1705-07 (2006).
101. Garnett, supra note 90, at 1668.
102. Id. at 1670.
103. Van Orden, 545 U.S. at 704 (Breyer, J., concurring in the judgment).
104. See Anderson v. Salt Lake City Corp., 475 F.2d 29, 30 (10th Cir. 1973), super-seded by Van Orden, 545 U.S. 677,
105. and McCreary County v. ACLU, 545 U.S. 844 (2005), as recognized in Soc'y of Separationists v. Pleasant Grove City, 416 F.3d 1239, 1291 n.1 (10th Cir. 2005).
106. Cf. Miller v. California, 413 U.S. 15, 24 (1973) (quoting Kois v. Wisconsin, 408 U.S. 229, 230 (1972)) (including "community standards" in the test for determining whether a particular expression is obscene and, thus, unprotected by the First Amendment).
107. Van Orden, 545 U.S. at 700 (Breyer, J., concurring in the judgment).
108. Id. at 703.
109. Id. at 704-05 (citing McCreary, 545 U.S. at 881-83 (O'Connor, J., concurring)). Justice O'Connor made three points in her McCreary concurrence. First, she stated that religion is a matter of individual conscience.
110. See McCreary, 545 U.S. at 882 (O'Connor, J., concurring). Second, she stated that government endorsement of religion fosters religious division and threatens liberty.
111. See id. at 883. Third, she argued that the broad acceptance of the Ten Commandments is irrelevant in determining the constitutionality of a particular Ten Commandments display because religious minorities are also protected by the First Amendment.
112. See id. at 884.
113. Justice O'Connor's very short Van Orden dissent stated her agreement with Justice Souter's dissenting opinion, which Justice Ginsburg also joined.
114. See Van Orden, 545 U.S. at 737 (O'Connor, J., dissenting). Justice Souter emphasized that a "government display of an obviously religious text" such as the Ten Commandments is not neutral when it appears in a context where the government's "predominant purpose" is "to adopt the religious message or urge its acceptance by others."
115. Id. at 737-38 (Souter, J., dissenting). Justice Souter disagreed with Justice Breyer that the monument's placement on the capital grounds distinguished this case from Stone, in which the Court struck down the display of the Ten Commandments in Kentucky public schools.
116. See id. at 744-45. He also did not find it constitutionally significant that the first lawsuit challenging the Texas monument came forty years after its installation.
117. See id. at 746. Justice Souter acknowledged, however, that reasonable minds could differ on these issues.
118. See id.
119. Card v. City of Everett, 520 F.3d 1009, 1016 (9th Cir. 2008) (citations omitted).
120. As of this writing, post-Van Orden courts of appeals cases include: Weinbaum v. City of Las Cruces, Nos. 06-2355, 07-2012, 2008 WL 4182390 (10th Cir. Sept. 12, 2008);
121. Card, 520 F.3d 1009; Buono v. Kempthorne, 502 F.3d 1069 (9th Cir. 2007);
122. Access Fund v. U.S. Dep't of Agric., 499 F.3d 1036 (9th Cir. 2007);
123. Staley v. Harris County, 461 F.3d 504 (5th Cir. 2006), abrogated by 485 F.3d 305 (5th Cir. 2007) (en banc);
124. Selman v. Cobb County Sch. Dist, 449 F.3d 1320 (11th Cir. 2006);
125. Skoros v. City of New York, 437 F.3d 1 (2d Cir. 2006);
126. ACLU of Ky. v. Mercer County, 432 F.3d 624 (6th Cir. 2005);
127. ACLU Neb. Found, v. City of Plattsmouth, 419 F.3d 772 (8th Cir. 2005) (en banc);
128. Soc'y of Separationists v. Pleasant Grove City, 416 F.3d 1239 (10th Cir. 2005);
129. O'Connor v. Washburn Univ., 416 F.3d 1216 (10th Cir. 2005).
130. See Card, 520 F.3d at 1016;
131. Plattsmouth, 419 F.3d at 778 n.8.
132. Plattsmouth, 419 F.3d at 773-74.
133. Id. at 778.
134. See id. at 778 n.8.
135. Id. (citation omitted).
136. The Eighth Circuit has continued to apply Lemon in other Establishment Clause cases.
137. See, e.g., Americans United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 423 (8th Cir. 2007) (affirming the district court's permanent injunction forbidding two Christian organizations from receiving state funding to operate inmate rehabilitation programs in Iowa state prisons).
138. Card v. City of Everett, 520 F.3d 1009, 1010 (9th Cir. 2008).
139. Id. at 1016 (citations omitted).
140. McCreary County v. ACLU, 545 U.S. 844, 902 (2005) (Scalia, J., dissenting).
141. See Van Orden v. Perry, 545 U.S. 677, 713 (2005) (Stevens, J., dissenting).
142. 416 F.3d 1239 (10th Cir. 2005).
143. See Reply Brief of the Defendants-Appellees at 7-8 & n. 3, Separationists, 416 F.3d 1239 (No. 04-4136).
144. See Separationists, 416 F.3d at 1241 n.1 (citing Anderson v. Salt Lake City Corp., 975 F.2d 29 (10th Cir. 1973)).
145. See id. at 1240.
146. See Douglas G. Smith, The Constitutionality of Religious Symbolism After McCreary and Van Orden, 12 TEX. REV. L. & POL. 93, 119 (2007) ("Another potentially negative effect of the McCreary decision is to prolong and complicate Establishment Clause litigation.").
147. Separationists, 416 F.3d at 1240-41. Separationists involved a motion for judgment on the pleadings, so it is perhaps not surprising that the Tenth Circuit needed more information before it could make a well-supported decision. But Professor Smith has noted that the Eleventh Circuit also engaged in heavy reliance on facts when it cited McCreary in remanding a case involving procreationism stickers on biology textbooks for further fact finding on the motives of the legislators.
148. See Smith, supra note 115, at 119-20 (discussing Selman v. Cobb County Sch. Dist., 449 F.3d 1320, 1322-23 (11th Cir. 2006)). The record in Selman had been partly lost, however, so McCreary probably was not determinative of the decision to remand.
149. See Selman, 449 F.3d at 1322. At a minimum, Professor Smith is likely correct that McCreary has had the effect of making Establishment Clause litigation slower and more complicated.
150. Staley v. Harris County (Staley II), 485 F.3d 305, 309 (5th Cir. 2007) (en banc).
151. Staley v. Harris County (Staley I), 461 F.3d 504, 506, 508-09, 515 (5th Cir. 2006).
152. See id. at 505-06, 513.
153. See id. at 513.
154. Id. at 507, 513-14.
155. Id. at 514.
156. Id. at 513.
157. Staley v. Harris County (Staley II), 485 F.3d 305, 309 (5th Cir. 2007) (en banc).
158. See Smith, supra note 115, at 119-20.
159. Compare Geier v. Am. Honda Motor Co., 529 U.S. 861, 883 (2000) (giving weight to the Department of Transportation's interpretation of its own regulations because the interpretation has been "consistent[] over time"),
160. with In re GWI PCS 1 Inc., 230 F.3d 788, 807 (5th Cir. 2000) ("[W]here an agency's interpretation occurs at such a time and in such as manner as to provide a convenient litigation position for the agency, we have declined to defer to the interpretation.").
161. See Buono v. Kempthorne (Buono TV), 502 F.3d 1069, 1085 (9th Cir. 2007).
162. See Access Fund v. U.S. Dep't of Agric., 499 F.3d 1036, 1039 (9th Cir. 2007).
163. Van Orden v. Perry, 545 U.S. 677, 695 (2005) (Thomas, J., concurring).
164. Buono v. Norton (Buono I), 212 F. Supp. 2d 1202 (C.D. Cal. 2002).
165. See id. at 1217.
166. See Buono IV, 502 F.3d at 1082 n.13, 1086.
167. See Buono v. Norton (Buono II), 371 F.3d 543, 544 (9th Cir. 2004);
168. Buono I, 212 F. Supp. 2d at 1204-05.
169. Buono IV, 502 F.3d at 1071;
170. Buono v. Norton (Buono III), 364 F. Supp. 2d 1175, 1177 (C.D. Cal. 2005).
171. See Buono IV, 502 F.3d at 1069.
172. See Buono II, 371 F.3d at 550.
173. Id.
174. Buono IV, 502 F.3d at 1072-73.
175. See McCreary County v. ACLU, 545 U.S. 844, 901 (2005) (Scalia, J., dissenting).
176. Buono II, 371 F.3d at 550.
177. See id.
178. See Buono JV, 502 F.3d at 1072.
179. See id. at 1073.
180. See Buono II, 371 F.3d at 550. Given the history of the conflict between Congress and the Park Service, the court's observation that the plaintiff is a retired Park Service official and former Assistant Superintendent of the Mojave Desert Preserve is interesting.
181. See Buono IV, 502 F.3d at 1073 n.4.
182. See Van Orden v. Perry, 545 U.S. 677, 701-03 (2005) (Breyer, J., concurring in the judgment).
183. See Buono II, 371 F.3d at 548 (citing Lynch v. Donnelly, 465 U.S. 668, 687 (1984)).
184. See Buono IV, 502 F.3d at 1085.
185. See id. at 1076.
186. See id. at 1085. In a dissent from the refusal to grant en banc review in Buono IV, Judge O'Scannlain offered a critique of the panel's treatment of the property-transfer issue. Buono v. Kempthorne, 527 F.3d 758, 760-68 (9th Cir. 2008) (O'Scannlain, J., dissenting from denial of en banc review).
187. Buono IV, 502 F.3d at 1086.
188. Van Orden v. Perry, 545 U.S. 677, 695 (2005) (Thomas, J., concurring).
189. 499 F.3d 1036 (9th Cir. 2007).
190. For example, the monument in Access Fund was eligible for inclusion on the National Register of Historic Places, while the war memorial in Buono was not. Buono IV, 502 F.3d at 1073;
191. Access Fund, 499 F.3d at 1040. Buono IV noted that:
192. [The Park Service] determined that neither the [Sunset Rock] cross nor the property on which it is situated qualifies for inclusion in the National Register of Historic Places. Specifically, [the Park Service] recognized that -the cross itself "has been replaced many times and the plaque that once accompanied it (even though it is not known if it is original) has been removed." Also, the property does not qualify as an historical site because, among other things, "the site is used for religious purposes as well as commemoration." Buono IV, 502 F.3d at 1073.
193. Access Fund, 499 F.3d at 1039.
194. Id. at 1040.
195. See id. at 1041.
196. See id. at 1042.
197. See id.
198. See id. at 1042-43, 1046.
199. Id. at 1043.
200. See id. at 1040.
201. See id.
202. Id. at 1044.
203. Id.
204. Id.
205. Id. at 1045.
206. Id. at 1045-46.
207. See id. at 1041.
208. Id. at 1046 (internal quotation marks omitted).
209. See McCreary County v. ACLU, 545 U.S. 844, 901 (2005) (Scalia, J., dissenting).
210. Trunk v. City of San Diego, 568 F. Supp. 2d 1199 (S.D. Cal. 2008), appeal docketed, No. 08-56436 (9th Cir. Sept. 3, 2008).
211. See McCreary, 545 U.S. at 860.
212. Id. at 902-03 (Scalia, J., dissenting).
213. Van Orden v. Perry, 545 U.S. 677, 683-84 (2005) (Rehnquist, C.J., plurality opinion).
214. See id. at 726-27 (Stevens, J., dissenting). Beyond neutrality under the Establishment Clause, a collateral dilemma has also arisen in challenges by those wishing to add their own displays to settings with existing religious monuments. One such challenge was argued before the Supreme Court on November 12, 2008 in a case in which a religious group sought to add its own monument to a park that already contained an Eagles' Ten Commandments display.
215. See Pleasant Grove City v. Summum, No. 07-665 (U.S. argued Nov. 12, 2008). A decision is expected by June 2009.
216. See Van Orden, 545 U.S. at 733-34 (Stevens, J., dissenting).
217. See Andrew Koppelman, Secular Purpose, 88 VA. L. REV. 87, 90 (2002).
218. Brief for The Family Research Council, Inc. and Focus on the Family as Amici Curiae Supporting Petitioners at 6, McCreary County v. ACLU, 545 U.S. 844 (2005) (No. 03-1693), 2004 WL 2851013.
219. Id. at 5.
220. Van Orden, 545 U.S. at 683 (plurality opinion).
221. Id. at 683-84.