III. The Establishment Clause Bans Government Officials From Speaking Religiously

Over the last decade, the courts have considered a significant number of cases involving religious speech by government, whether. that speech is explicit or symbolic The upshot of these cases is that, as a general rule, government and its officials may not broadcast religious messages.

[T]he Establishment Clause requires the State to distinguish between "religious" speech -- speech, undertaken or approved by the State, the primary effect of which is to support an establishment of religion -- and "nonreligious" speech -- speech, undertaken or approved by the State, the primary effect of which is not to support an establishment of religion. This distinction is required by the plain text of the Constitution. It is followed in our cases. E.g.., Stone v. Graham ..

Widmar v. Vincent, 458 U.S. 263, 271, n.9 (1981).

That the freedom of speech does not extend so far as to permit government, or its officials when acting in its official capacity, to transmit religious message was repeated most recently in Capitol Square Review and Advisory Board v. Pinette, 115 S.Ct. 2440, 2448 (1995). There, the Supreme Court drew a sharp distinction between publicly sponsored religious speech and private speech on public property held as a traditional or designated public forum Although the Justices there disagreed whether, and if so, under what circumstances, private speech in a public forum should be treated as governmental speech for Establishment Clause purposes, they were unanimous in agreeing that the government itself could not speak religiously.

Justice Scalia, writing for a plurality, said that private speech in a public forum should never be treated as government speech, 115 S.Ct at 2447-48. He was nevertheless clear that government religious speech itself would be unconstitutional. Id at 2448, citing Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990). A majority of the PinetteCourt endorsed that view. Id. at 2448 (Scalia, Rehnquist, Kennedy, Thomas, J.J.); id at 2452 ((O'Connor, Souter, Breyer, J.J..); id at 2466 (Steven, J., dissenting) ("The plurality does not disagree with the proposition that the State may not espouse a religious message.") Cf. id at 2474 (Ginsburg, J., dissenting).

In Mergens, the United States Supreme Court upheld the constitutionality of the Equal Access Act, 20 U.S.C 2071, et seq. That Act required schools which permitted any non-curriculum related student-initiated clubs to tolerate any and all student sponsored, non-curriculum related clubs during non-instructional time.

Under the terms of the Act, school officials are prohibited from initiating, controlling or interfering with clubs activities. Pointing to the sharp line the Act drew between private religious activities and publicly sponsored ones -- the exact line the Constitution itself draws -- the Court upheld its constitutionality. As Justice O'Connor put it in her concurring opinion, "There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercises Clauses protect." 496 U.S. at 250 (emphasis in original). Prayer in the courtroom⁽²⁾ and the display of religious symbols are government speech, and hence prohibited by the Constitution.

Passive religious speech, in the form of religious symbols, can constitute government speech in support of religion. County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989). Before turning to that case, though, it is worth recalling how well settled is the principle that symbols speak. In West Virginia Board of Education V. Barnette, 319 U.S. 629 (1943), Justice Jackson put it (as he always did) eloquently:

Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of State often convey political ideas just as religious symbols come to convey theological ones.

Cf. Stromberg v. California, 283 U.S. 359 (1931) (striking statute barring display of red flag) The Court was merely accepting what theologians, social scientists and linguists know of the power of symbols. F.W. Dillistone, The Power of Symbols In Religion and Culture (1986). Here, of course, the display of a religious, theological symbol by a state official is an attempt to convey the idea of a unity between religion and political power, an illegitimate exercise. Larkin v. Grendel's Den, 459 US. 116 (1982).

Allegheny County illustrates the limits on governmental symbolic religious speech. The County erected a creche depicting the nativity of Jesus is a prominent place in its courthouse (not even in a courtroom). No other symbols were part of that display, which was erected at Christmas, when Christians celebrate the incarnation of Jesus. The Court found the display unconstitutional. The government's adoption of religious symbolism conveyed a constitutionally impermissible message of support for a religious idea.

In its defense, Allegheny County contented that the creche celebrated Christmas as a secular national holiday. The Court was not persuaded. Because the creche, an undoubtedly religious symbol, stood alone without any surrounding secular symbols to lessen its religious message, and it stood at the seat of governmental power, the message conveyed was one of official endorsement of a religious idea, not a secular one.

Justice Blackmun's majority opinion noted that this result followed directly from the effects branch of the tripartite test of Lemon v. Kurtzman, 403 U.S. 621 (1977), whether one took the test as traditionally interpreted, or as understood by Justice O'Connor in her Lynch v. Donnelly concurrence, that the test asked whether a practice had the effect of sending "a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." 492 U.S. at 595, citing Lynch v. Donnelly, 465 US. 668, 688 (1984) (O'Connor, J., concurring).⁽³⁾

Any endorsement of religion is unconstitutional if one faith is singled out, but as Justice Blackmun noted, "The simultaneous endorsement of Judaism and Christianity is no less constitutionally infirm than the endorsement of Christianity alone." 492 US. at 615. Accord, id at 632-35 (O'Connor, J., concurring); id at 644-46 (Brennan, Marshall and Stevens, J.J.). While Justice Kennedy expressed his disagreement with the endorsement test and with the Court's rejection of the holiday season as a secularizing context, his doubts did not extend to a case in which there was a permanent display of a religious symbol. "[T]he Clause forbids a city to permit the erection of a large Latin cross on the roof of city hall. ... [S]uch an obtrusive year-round religious display would place the government's weight behind an obvious effort to proselytize. " 492 U.S. at 661.

The holding in that case should dispose of this one. Here, the plaque bearing the Ten Commandments, like the creche, is undoubtedly a religious symbol. Second, it stands free of any secularizing symbols. On the findings below, it does not stand together with other symbols which might be taken to depict the origin of Western (or just Alabama) law. The display is located at the seat of government It was placed (indeed, created by) the powerful official who exercised vast irrevocable discretionary powers in the very room where the display stands, and who opened each jury term with prayer. The display is permanent, and not temporary, and not linked to any event or season in the larger community which would, like reindeer or wreaths surrounding a creche, attenuate its sectarian message And its evident purpose is to proselytize those who come into the courtroom, to suggest to them the importance of the congeries of religious ideas expressed by the Ten Commandments.

The Supreme Court's most recent essay on religious symbols makes plain the Court's continued adherence to these principles. In Pinette, supra, a cross was sought to be temporarily displayed by the Ku Klux Klan in a place well-known to be a public forum. The forum was frequently used by many groups for private displays. While the Court held that the Klan had the right to display its cross, a review of the multiple opinions in that case demonstrates that the holding in that case does not permit the display at issue here. On the contrary, all of the Justices assumed that the sort of religious speech at issue here would be impermissible.

Four Justices in Pinette thought that since the cross was in fact privately sponsored, its display in a public forum was not violative of the Establishment Clause, for that Clause that applies only to the state's speech. A mistaken assumption of state endorsement, they wrote, could not constitute an establishment. 115 S.Ct at 2447. But the plurality assumed that "the government's use of religious symbols is unconstitutional if it effectively endorses religious belief." Id at 2448.

Three Justices (per Justice O'Connor) restated their adherence to the endorsement test, and that government adoption for its own purposes of a "potent sectarian symbol," id at 2453, would be unconstitutional. While Justice O'Connor agreed that, in the context of a well-known public forum, it would be unlikely that there would be government endorsement of a display, she thought that the endorsement test should nevertheless be applied even to privately owned religious symbols displayed in a public forum. Id at 2454.

Of particular note here, in deciding whether even in a public forum there was an official endorsement of religious speech, Justice O'Connor would weigh in the balance that a display was placed at the seat of government. Id at 2453.⁽⁴⁾ Justice O'Connor was even prepared to assume that in the case of displays placed inside government buildings, the reasonable observer would assume governmental endorsement of religious displays. Id at 2456.

Justice Souter wrote specifically to reject the plurality's conclusion that a private display could never be viewed as endorsement. Even in the context of a public forum, "[a]n observer need not be 'obtuse' ... to presume that an unattended display on government land in a place of prominence in front of a government building either belongs to the government, represents government speech or enjoys its location because of government endorsement of its message Id. at 2459. If that were true of a privately owned display in a public forum, it is a fortiori true that a government -- sponsored display placed in a courtroom by the judge presiding there enjoys the sponsorship of government.⁽⁵⁾ Justice Souter noted that unless the endorsement test extended to private actors, it would cover only "that subclass of cases in which the government owns the display, id at 2459 -- a class that covers this case in any event And he criticized the plurality for "allowing government to encourage what it can not do on its own." Id. at 2461.

Justices Stevens and Ginsburg dissented, on the ground that even the private display of a cross in close proximity to a state capitol necessarily implied state endorsement to some reasonable observers. If that is true of private speech in a public forum, it is a fortiori true of official speech in a nonpublic forums. In sum, all of the Justices were clear that government-sponsored religious speech violates the Establishment Clause.

It is not surprising, therefore, that when presented with a display not even as constitutionally suspect as this -- there the Ten Commandments were displayed in a hallway, not in a courtroom -- a federal district court in Georgia found a constitutional violation, and that the Eleventh Circuit summarily affirmed.

In Harvey v. Cobb County, 811 F.Supp. 669 (ND. Ga. 1993), aff'd, 15 F.3d 1097 (11th Cir. 1994) (table), the court passed on a 3' x 5' panel containing the Ten Commandments and statements of Jesus urging love of God and fellow man, 811 F.Supp at 671. (The Sixth Commandment on that display was translated as a ban on killing, not murder, which expert testimony indicated was a Christian, not Jewish reading of the Decalogue Id.)

The court found the display unconstitutional. First, it quoted Stone v. Graham, holding unconstitutional a naked display of the Ten Commandments in public school classrooms. As the Harvey court noted, the displays in Stone each bore the notation that the display was intended only to illustrate the origins of American law -- the exact claim made here (but not placed on the plaque). The Supreme Court nevertheless held that the display was unconstitutional.

It is true that Stone v. Graham was a school case, and that the Supreme Court has indicated that religious intrusions into the public schools must be considered with special care both because of the impressionability of students and the fact that their attendance is not voluntary. Edwards v. Aguillard, 482 U.S. 578 (1987). While the persons coming into Etowah County courtrooms are presumably not juveniles, many, probably most, of them are not there voluntarily. Defendants, witnesses under subpoena, and jurors are all forced to attend. They cannot simply avoid it.

On the assumption that Stone v. Graham might be read as limited to public schools, the Harvey court applied Allegheny County to the display and found it lacking:

Here, too, the display stands alone in the alcove, and there are no countervailing secular passages or symbols. "[Nothing in the context of the display detracts from the [panel's] religious message" Allegheny, 492 U.S. at 598 Moreover, the display is located in the Cobb County State Court Building, a seat of judicial authority. in the county. Although the panel is not located in the most prominent part of the building, it is, nonetheless, located high on the wall, above a marble bench, near the Clerk's Office and the traffic Court courtrooms. "No viewer could reasonably think that it occupies this location without the support and approval of the government" Id The Court concludes that the panel, when considered in its context, has the effect of endorsing religion in general and Christianity in particular and therefore violates the Establishment Clause.

811 F.Supp. at 677.

The only salient difference between that case and this is one which cuts against constitutionality. There the display stood in a hallway and here it stands in a courtroom, a place where clear state control over what is posted is maintained. The suggestion of government endorsement is plainer in the courtroom than in the hallway. So, too, is the display's unconstitutionality.

Two cases on which Appellants rely that permit displays of the Ten Commandments are factually distinguishable and in any event inconsistent with these binding principles. Anderson v. Salt Lake City Corporation, 475 F.2d 29 (10th Cir. 1973), involved a monolith on which was inscribed the Ten Commandments "the All seeing eye of G-d, the Star of David, the Order of Eagles, letters of the Hebrew alphabet, and Christ or peace." 475 F.2d at 30. The monolith stood on the grounds of the Salt Lake courthouse.

The court there upheld the display. Although the case is distinguishable on its facts -- the Commandments were on the lawn, not in the courtroom, and on a plaque with secular symbols, more important is the fact that the decision in that case was rendered long before Stone v. Graham, supra, or Allegheny County, supra The Andersoncourt held, first, that the Ten Commandments were not "primarily religious in character." 475 F.2d at 33, see also, id at 34. That is a conclusion flatly at odds with Stone v. Graham.

Moreover, the court in Anderson held that "It does not seem reasonable to require removal of a passive monument, involving no compulsion, because its accepted precepts ... as a foundation of law, reflect the religious nature of an ancient era." Id. at 34. This statement, too, cannot be squared with later precedents. Coercion was explicitly rejected as the sine qua non of an Establishment Clause claim in Allegheny County, supra, a religious symbol case. And to the extent that the Tenth Circuit's decision rests on the perception that the Ten Commandments' religious context is that of "an ancient era" its conclusion is wrong as a matter of law, Stone v. Graham, supra, sociology and religion.

It is indicative of the weakness of Anderson that it relies on Lane v. City of Eugene, 254 Or. 518, 463 P.2d 360 (1969). See 475 R2d at 33. Lane, which permitted the permanent display of a cross in a city park, has been held no longer to represent good law in a decision ordering removal of the very cross there tolerated. Separation of Church and State Committee v. City of Eugene, 93 F.3d 617 (9th Cir. 1996).

The other case relied on by Appellants is State v. Freedom from Religion Foundation, 898 P.2d 1013 (Col. 1995). There, a closely divided Colorado Supreme Court upheld the placement of a monolith depicting the Ten Commandments similar to the one at issue in Anderson. The Colorado court reasoned that the secular symbols displayed on the "not conspicuous" monument bearing the Commandments overcame its religious content and that its presence in a park with larger monuments with which it was seen as part, "fits within the melange of historical commemorative accounts found in [the] Park." 898 P.2d at 1025. The Court also noted an absence of any evidence that the state had accepted the display with any religious purpose in mind.

Frankly, amicus believe that the dissenters in that case had the better of the argument. Among other errors, the Colorado court relied on the discredited notion that the exclusion of a religious symbol in a non-public forum would amount to hostility toward religion, 898 P.2d at 1026, a conclusion at war with Allegheny County. But even on the facts, this case is different. The court there emphasized that the monument was in an inconspicuous place", 898 P.2d at 1025, not, as here, in a prominent place of honor behind the judge in his courtroom. The trial court here found that the Ten Commandments are perceived as standing alone, and not as part of some larger secularizing display. This is a finding of fact entitled to deference on appeal.

Moreover, as the Colorado court noted, it had before it a display which had no coercive effect, for unlike the courts "where citizens exercising their right to access the courts ... might encounter the monument ...", 898 P.2d at attendance on the corner of the state house park was purely voluntary. Coercive pressures are present here. And, finally, there was in that case no evidence that the group donating the display had any sectarian motive such that the state's acceptance and display of the monolith did nothing more than ratify the private group's secular purpose. Here, the legal papers filed in defense of the Ten Commandments, Judge Moore's extra-judicial comments on the subject, and Governor James' remarks in its defense make it plain the display of the plaque had -- and even more clearly, now has -- a religious motive.

2. It is of no constitutional moment that the prayers were not offered by a judge, but by a clergyperson selected by him or her. Lee v. Weisman, 505 US. 577 (1992) (clergyman selected by school offering graduation prayer).

3. In an interview with Associated Press, Judge Moore defending his courtroom practices, made plain his view that "Judeo-Christians" are insiders, and others are "outsiders". See Appendix A.

4. Justice O'Connor and Justice Stevens disagreed whether the reasonable observer of Lynch should be assumed to know that a place is a public forum or not Compare id at 2455-56 with id at 2469-71. Justice O'Connor thought that assumption should be made; Justice Stevens disagreed. That dispute is irrelevant where there is no public forum No one can reasonably contend that the walls of the courtroom in the Etowah County courthouse are a public forum. Presumably, for example, citizens cannot insist on the right to post displays urging jury nullification or an end to the death penalty and the exclusionary rule on the walls of Judge Moore's courtroom.

5. We take it as too plain for argument that Judge Moore is a state actor, and that in offering a prayer at the beginning of the day and in decorating the walls of his courtroom he acts under color of state laws. The cases which sustain that position are legion.