The Mojave Desert cross is not the only Establishment Clause icon to make a comeback this week. Roy Moore, the former Chief Judge of the Alabama Supreme Court, who famously defied a federal court order to remove a Ten Commandments monument from the state courthouse, has won election to his old job. In 2003, a state judicial ethics panel removed Moore from office for failing to comply with the federal court order. This week, the voters of Alabama sent Moore back to his former position. Moore told his supporters that he would continue “to stand for the acknowledgment of God,” but has promised not to try to restore the monument.
Federal Court Denies Preliminary Injunction Against County Legislative Prayer
Another skirmish in the legal contests about the constitutionality of legislative prayer — this time in a thoughtful district court decision. The plaintiff sued a local Tennessee County to stop it from beginning its regular meetings with a prayer. The stipulated facts indicated that prayers were given by members of various faiths through the years, but that “[s]ome of the invocations ‘referred to a deity in a way consistent with the Christian faith.'” Most recently, the Lord’s Prayer was recited, and several commissioners “stood and joined in the spoken recitation of the prayer.” After these incidents, the County adopted a policy indicating that its list of invocation-givers is drawn from a variety of religious traditions and is entirely voluntary, and that legislative prayer has been held by the Supreme Court in Marsh v. Chambers to be constitutional. The Freedom From Religion Foundation nevertheless sued, seeking a preliminary injunction to stop the County from conducting the prayers pursuant to the policy and alleging a violation of the Establishment Clause.
The United States District Court for the Eastern District of Tennessee denied the preliminary injunction. After remarking on the extremely murky status of the Lemon Test (and I loved this quote from a Sixth Circuit opinion: “[W]e remain in Establishment Clause purgatory.”), the court held that in the specific context of legislative prayer, the Lemon Test “simply does not apply.” Instead, Marsh v. Chambers is the standard, in which the Supreme Court engaged in a historical examination of the practice of legislative prayer, concluding that it is “deeply embedded in the history and tradition of the country.” The court quoted this specific language from Marsh:
Beyond the bare fact that a prayer is offered, three points have been made: first, that a clergyman of only one denomination—Presbyterian—has been selected for 16 years; second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo–Christian tradition. Weighed against the historical background, these factors do not serve to invalidate Nebraska’s practice.
The court recognized that Marsh’s holding had been qualified in City of Allegheny v. ACLU (a religious display case, not a legislative prayer case), where the Supreme Court had some limiting things to say about the force of history and tradition. But the Sixth Circuit has not (yet) decided a case specifically about the constitutionality of legislative prayer.
In light of the holding and dicta in Marsh, as well as the recent legislative prayer decisions in the Second Circuit (discussed here), Fourth Circuit (particularly Joyner v. Forsyth County), and the Eleventh Circuit (Pelphrey v. Cobb County), the court distilled several broad “themes” relating to the constitutionality of legislative prayer:
- “[L]egislative prayer has a unique and well-established history that, relative to the First Amendment, renders it unlike other types of government conduct. It presents a sui generis legal question[.]”
- “I]n large measure due to the unique historical place it occupies, legislative prayer is, in general, permissible . . . . Legislatures may call upon—or even employ—ordained ministers to invoke divine guidance on a group of elected officials . . . . [T]o the extent a clear message can be heard from Marsh, it is this: as a basic legal principle, the Establishment Clause is not offended if a legislature formally invokes divine blessings on its official business.
- “[D]espite its marked differences from other governmental involvement with the sacred, a legislature’s ability to call on the divine at public meetings is not limitless. Historical patterns, standing alone, cannot justify violations of constitutional guarantees, and the government may not express its allegiance to a particular sect or creed . . . . It is for that reason that the prayer opportunity cannot be used to proselytize listeners . . . . Likewise, such prayer practices may not be used to advance any one belief or to disparage any other . . . . Even when operating under a facially neutral policy, a legislature may not select invocational speakers based on impermissible motives or sectarian preferences.”
Applying these themes, the court held that the County’s policy did not, on its face, violate the Establishment Clause. The policy specifically states that it is not intended to proselytize or to promote any particular religion. It is inclusive in its scope, extending to all religious congregations with an established presence in the County and open to all that wished to be included. The court rejected as speculative and “unripe” FFRF’s allegation that the Policy is “a sham” and that, when applied, it will certainly be unconstitutional. Neither, however, does the County’s policy insulate it from further review down the road.
The case is Jones v. Hamilton County, 2012 WL 3763963 (E.D. Tenn. Aug. 29, 2012).
Eleventh Circuit Remands Ten Commandmants Case on Standing Grounds
The U.S. Court of Appeals for the Eleventh Circuit has remanded a case to the district court involving a 5-foot-tall monument of the Ten Commandments which sits beside an entrance to the Dixie County Courthouse in Florida. The plaintiff, a North Carolina resident who was considering whether to purchase property in the County, made his way to the Courthouse and saw the monument. As the Eleventh Circuit put it, “the experience of seeing the statue was a negative one” (though after the shock had passed, he was able to recover and proceed with his business).
The plaintiff never did purchase any land in the County, but the ACLU used him in an attempt to get itself standing to sue the County for violating the Establishment Clause. Standing demands a concrete injury. When deposed, the plaintiff indicated that the reason he did not purchase property in the County was due to “the display of the monument” and because “I found other things I was offended by.” A later affidavit by the plaintiff indicates instead that the monument was the but-for cause of his decision not to purchase property. The district court denied a motion for summary judgment by the County on the issue of standing, and granted the ACLU’s motion for summary judgment on the merits.
For the Eleventh Circuit, the issue seems to be whether the plaintiff had standing to sue, and the remand has to do with an evidentiary question about the reasons for the plaintiff’s decision not to purchase property in the County. The initial deposition and later affidavit seem to be in some tension (the Court called the affidavit “suspect, given that it seems designed to strengthen [plaintiff’s] standing claim”). By granting the ACLU’s summary judgment motion, the district court improperly resolved a disputed factual question.
Judge Edmonson filed a separate opinion concurring in part and dissenting in part, arguing that the case should be dismissed now because plaintiff has failed to meet the standing requirement. He would have relied on the “clear and unambiguous answers” in the deposition, not the later prepared affidavit, to dismiss the case. Judge Edmonson notes that the “other things” that offended the plaintiff (as stated in the deposition) included: (1) a cartoon in the County assessor’s office depicting an American soldier telling a French official “Well, you didn’t make me show a Visa when I landed in Normandy”; (2) a writing in the assessor’s office that said something like “the only two who gave blood for you or gave their souls for you were Jesus and the veterans”; and (3) a website that included the words “Patriot Properties” and “Dixie” in its web address, which an employee in the assessor’s office recommended that plaintiff visit if he had more questions. Plaintiff also stated that he was discomfited by the fact that the locals were “a bit cold.”
The case is ACLU of Florida, Inc. v. Dixie County, Florida (August 15, 2012).
Sixth Circuit: County’s Denial of Permit for Creche Violates Free Speech Clause
Another skirmish in the Christmas Wars: the Sixth Circuit has decided that a county’s denial of a permit to erect a creche on public property violated the Free Speech Clause. For decades, a family in Macomb County, Michigan, had erected a Christmas creche on a roadway median. In 2008, the Freedom From Religion Foundation told the county that the creche violated the Establishment Clause and asked that it be removed; after consulting counsel, the county revoked the permit. The family then sued the county, arguing, among other things, that the county had violated the family’s free speech rights. Yesterday, the Sixth Circuit agreed. In a unanimous decision by Judge Boggs, the panel held that the median was a traditional public forum and that the county had not shown a compelling interest in rejecting the creche. Although the government argued that safety concerns justified its decision, the court dismissed this as a litigation strategy. The real reason the county had rejected the creche, the court said, was to avoid a perceived Establishment Clause violation. But, notwithstanding the legal advice the county had received, the creche did not violate the Establishment Clause. The creche, the court explained, was only one of a number of privately-sponsored displays in a public forum, and thus constitutionally unobjectionable. The case is Satawa v. Macomb County Road Commission, 2012 WL 3104511 (6th Cir., Aug. 1, 2012).
Get That Cross Off the City Seal
Once again, we’ve hit the silly season for objections to religious symbols. This week, in response to a threatened lawsuit by the Freedom from Religion Foundation, the city of Steubenville, Ohio, decided to revise its official seal (left) to remove the silhouette of a local landmark, the chapel on the campus of Franciscan University. You see it? Take your time, it’s over there on the right. The problem was the cross on top of the chapel. According to FFRF, its depiction amounted to an establishment of religion under current Supreme Court case law, which forbids government from endorsing religion. Someone suggested depicting the chapel without the cross, but FFRF apparently objected to that, too. So, rather than face an expensive lawsuit it figured it would lose, the city caved and restored an older version of the seal (below). The old seal 
avoids endorsing religion, though it does seem to endorse wooden forts.
I’m not sure the city was correct in estimating its chances. True, many lower courts have ordered the removal of crosses from city seals under the endorsement test, but the cases are very fact specific. The key question is whether a reasonable observer would see an official endorsement of Christianity, rather than a reflection of a community’s history. For example, the Tenth Circuit held a few years ago that the city of Las Cruces, New Mexico, could retain crosses on its seal in light of the Read more
Virginia Ten Commandments Case Settles
A followup to a case we noted in October. Last month, a federal district court in Virginia approved a settlement in a case challenging the constitutionality of a Giles County high school’s display of the Ten Commandments. Under the terms of the settlement agreement, the school will replace the display with a page from a history textbook that mentions the Commandments without actually quoting them. As we discussed in October, the display pretty clearly ran afoul of existing Supreme Court case law, which is particularly strict about religious symbols in public schools.
Well, At Least It’s a Madonna
Here’s something that will interest Steve Smith. CLR Forum reader John McGinnis points out this interesting article in yesterday’s Washington 
Post detailing European governments’ struggle to maintain architectural landmarks in times of declining budgets. Governments have taken to renting out ad space to cover the costs. Here, for example, is photo from the article, showing a billboard on scaffolding that surrounds Milan’s Gothic Duomo. I couldn’t tell from the article, but presumably the Italian government is helping to pay for repairs to the cathedral and is renting out space to H&M to defray the expenses. Or maybe the poster was the contractor’s idea. I assume the Milan Archdiocese didn’t come up with it.
Anyway, to get back to Steve’s post from yesterday. Maybe one reason why Europeans get less upset than Americans about public religious symbols is that Europeans don’t really take them too seriously as religious symbols. Religious sites and images are just part of the cultural background. If it’s OK to license use of the Colosseum in advertising, why not put posters on the Duomo? Judging by the article, Europeans are embarrassed by the commercial use of their heritage and what it suggests about the European political economy. They are not, apparently, too bothered by the sacrilege. Read the whole thing.
Cert. Denied in the Mt. Soledad Cross Case
The Supreme Court has denied certiorari in the Ninth Circuit’s Mt. Soledad cross case, Trunk v. City of San Diego.
Justice Alito issued a separate statement regarding the denial of cert. Note that this is not a dissent from the denial of cert., but only a “statement.” In his statement, Justice Alito makes clear that he agrees with the decision to deny cert. at this time. The reason is the posture of the case. In the Ninth Circuit decision, the panel (in an opinion by Judge McKeown) had not required that the cross be removed. Instead, it had only required that the memorial in toto be modified so as to pass constitutional muster, in conformity with the approach the court laid out. Justice Alito wrote:
Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will berequired to take, I agree with the Court’s decision to denythe petitions for certiorari. Our denial, of course, does not amount to a ruling on the merits, and the Federal Government is free to raise the same issue in a later petition following entry of final judgment.
(footnotes and citations omitted).
I have mentioned this before, but if you have not read Judge McKeown’s Trunk opinion, you’d do yourself a favor by checking it out. One can agree or disagree with the outcome (I have my own disagreements with it), but I believe it to be a model of judicial craftsmanship and method. Or…just wait for next spring to see in greater detail why I think Trunk is an elegant and methodologically appealing decision!
Movsesian on State-Sponsored Religious Displays in the US and Europe
Mark’s new piece is up at the Oxford Journal of Law and Religion, Crosses and Culture: State-Sponsored Religious Displays in the US and Europe. Comparativists and students of religious liberty will enjoy and learn a lot from the piece. The abstract follows.
This article compares the recent jurisprudence of the US Supreme Court and the European Court of Human Rights on the question of state-sponsored religious displays. Both tribunals insist that states have a duty of religious ‘neutrality’, but each defines that term differently. For the Supreme Court, neutrality means that government may not proselytize, even indirectly, or appear to favour a particular church; neutrality may even mean that government must not endorse religion generally. For the ECtHR, in contrast, neutrality means only that government must avoid active religious indoctrination; the ECtHR allows government to give ‘preponderant visibility’ to the symbols of traditionally dominant churches. The different conceptions of neutrality reflect institutional and cultural realities. In particular, the differences reflect what sociologists of religion describe as the ‘American’ and ‘European’ religious models.
Because issues of methodology are of special interest to me, here are some of Mark’s reflections on that question — and in particular about the function of comparative scholarship — in the conclusion to the piece (I have omitted the footnotes, which you can chase down in the piece):
My purpose in this article has been comparative and critical: I have attempted to explain different legal regimes in terms of fundamental institutional and cultural commitments. Comparative work, particularly interdisciplinary comparative work, is still a bit new in law and religion scholarship. As Grace Davie recently has written, law and sociology ask different questions and rely on different methods; ‘conversations’ between lawyers and sociologists can therefore be ‘difficult’. Nonetheless, such conversations are essential. For law both reflects and influences underlying social conditions. In Mary Ann Glendon’s phrase, ‘law, in addition to all the other things it does, tells stories about the culture that helped to shape it and which it in turn helps to shape: stories about who we are, where we came from, and where we are going’. The law on state-sponsored religious displays reveals very different understandings about the place of religion in American and European society. This article is an effort to illuminate those understandings and contribute to an emerging path in law and religion scholarship.
Mt. Soledad Cross Case on Tomorrow’s Supreme Court Conference
One of the cases listed as on for tomorrow’s cert. petition conference is Mt. Soledad Memorial Ass’n v. Trunk, which asks the Court to overturn a Ninth Circuit decision holding that display of a large cross as part of a war memorial violates the Establishment Clause. See Trunk v. City of San Diego, 629 F.3d 1099 (9th Cir. 2011). The opinion by Judge McKeown in that case was, in my opinion, truly exceptional — one of the finest decisions in its style of analysis on the issue of state-sponsored religious displays that I have come across — even if I have some disagreements about the holding and whether it successfully negotiates around Justice Kennedy’s plurality opinion in Salazar v. Buono.
In a somewhat unexpected move (at least to me), the Solicitor General has joined the cert. petition, making it more likely that the Court might take the case. More tomorrow.