Because of this country?s ?history and tradition of religious diversity that
dates from the settlement of the North American Continent,? the Founders included
in the Bill of Rights an Establishment Clause which prohibits any law ?respecting
an establishment of religion.? County of Allegheny v. ACLU, 492 U.S. 573, 589,
109 S. Ct. 3086, 30 99 (1989). In the mo re than two centuries since that clause
became part of our Constitution, the Supreme Court has arrived at an
understanding of its general meaning, which is that ?government may not promote
or affiliate itself with any religious doctrine or organization, may not discriminate
among persons on the basis of their religious beliefs and practices, may not
delegate a governmental power to a religious institution, and may not involve itself
too deeply in such an institution?s affairs.? Id. at 590-91, 109 S. Ct. at 3099
(footnotes omitted). Some aspects of the Chief Justice?s position in this case are
aimed directly at that u nderstan ding. Take, for example, the one w e address next.
The First Amendment does not say that no government official may take any
action respecting an establishment of religion or prohibiting the free exercise
thereof. It says that ?Congress shall make no law? doing that. Chief Justice Moore
is not Congress. Nonetheless, he apparently recognizes that the religion clauses of
the First Amendment apply to all laws, not just those enacted by Congress. See
Everson v. Bd. of Educ., 330 U.S. 1, 15, 67 S. Ct. 504, 511 (1947) (holding that the
Establishment Clause applies to the states through the Due Process Clause of the
Fourteenth Amendment). Even with that concession, his position is still plenty
bold. He argues that because of its ?no law? language, the First Amendment
proscrib es only law s, which should be defined as ?a rule of civil co nduct . . .
commanding what is right and prohibiting what is wrong.? Brief of Appellant at
19 (quoting 1 W illiam Blackstone, Commentaries *44). Any governmental action
promoting religion in general or a particular religion is free from constitutional
scrutiny, he insists, so long as it does not command or prohibit conduct. The
monument does neither, but instead is what he calls ?a decorative reminder of the
moral foundation of American law.? Brief of Appellant at 19.
The breadth of the Chief Justice?s position is illustrated by his counsel?s
concession at oral argument that if we adopted his position, the C hief Justice would
be free to adorn th e walls of the Alabama Supreme Court?s courtroom with
sectarian religious murals and have decidedly religious quotations painted above
the bench. Every government building could be topped with a cross, or a menorah,
or a statue of Buddha, depending upon the views of the officials with authority
over the premises. A crèche could occupy the place of honor in the lobby or
rotunda of every municipal, county, state, and federal building. Proselytizing
religious messages could be played over the public address system in every
government building at the whim of the official in charge of the premises.
However appealing those prospects may be to some, the position Chief
Justice M oore takes is foreclosed by Supreme Court precedent. County of
Allegheny, 492 U.S. at 612, 109 S. Ct. at 3110, which held unconstitutional the
placement of a crèche in the lobby of a courthouse, stands foursquare against the
notion that the Establishment Clause permits government to promote religion so
long as it d oes not command or prohibit co nduct. Id., 109 S. Ct. at 3110 (?To be
sure, some Christians may w ish to see th e government proclaim its allegiance to
Christianity in a religious celebration of Christmas, but the Constitution does not
permit the gratification of that desire, which would contradict ?the logic of secular
liberty? it is the purpose of the Establishment Clause to protect.?) (citation
omitted). To the same effect is the decision in Lee v. Weisman, 505 U.S. 577, 587,
112 S. Ct. 2649, 2655 (1992), where the Supreme Court explained that, ?[a] school
official, the principal, decided that an invocation and a benediction should be
given; this is a choice attributable to the State, and from a constitutional
perspective it is as if a state statute decreed that the prayers must occur.? A nd in
Jaffree v. Wallace, 705 F.2d 1526 (11th Cir. 1983), prob. juris. noted and aff?d in
part, 466 U .S. 924, 104 S. Ct. 1704, cert. denied sub. nom. Bd. of Sch. Comm?rs of
Mobile County v. Jaffree, 466 U.S. 926, 104 S. Ct. 1707, and aff?d in part, 472
U.S. 38, 105 S . Ct. 2479 (1985), this Court concluded th at ?f a statute
authorizing the teachers? activ ities wou ld be unconstitutio nal, then th e activities, in
the absence of a statute, are also unconstitutional.? Id. at 1533-35.
Another of the Chief Justice?s broad-based attacks on the application of the
Establishment Clause to his condu ct involves the definition of religion. H e insists
that for First Amendment purposes religion is ?the duty which we owe to our
Creator, and the manner of discharging it?; nothing more, nothing less. Brief of
Appellant at 11-12 (quoting Virginia D eclaration of Righ ts Art. I, § 16 (1776)).
The Chief Justice argues that the Ten Commandments, as he has presented them in
the monument, do not involve the duties individuals owe the Creator, and therefore
they are not religious; instead, he says, they represent the moral foundation of
secular duties that individuals owe to society.
The Supreme Court has instructed us that for First Amendment purposes
religion includes non-Christian faiths and those that do not profess belief in the
Judeo-Christian God; in deed, it includes the lack of an y faith. Allegheny County,
492 U.S. at 590 , 109 S. Ct. at 309 9 (?Perh aps in the early days of the Republic
these words [of the Establishment Clause] were understood to protect only the
diversity within Christianity, but today they are 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.?) (internal marks omitted); Wallace v.
Jaffree, 472 U.S. 38, 52-53, 105 S. Ct. 2479, 2487-88 (1985) (?[T]he Court has
unambiguously concluded that the individual freedom of conscience protected by
the First Amendment embraces the right to select any religious faith or none at
all.?) (footn ote omitted); Torcaso v. Watkins, 367 U.S. 488, 495, 81 S. Ct. 1680,
1683-84 (1961). Ch ief Justice M oore?s proffered definition of religion is
inconsistent with the Supreme Court?s because his presupposes a belief in God.
We understand that the Chief Justice disagrees with the Supreme Court?s definition
of religion, but we are bound by it.
As for the other essential premise of Chief Justice Moore?s argument ? that
the Ten Commandments monument depicts only the moral foundation of secular
duties ? the Supreme Court has instructed us that ?[t]he 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.? Stone v.
Graham, 449 U.S. 39, 41, 101 S. Ct. 192, 194 (1980) (footnote omitted). The
Stone decision did not h old that all government uses o f the Ten Commandments
are impermissible; they may be used, for exam ple, in a secular study of history,
civilization, or comparative religion. Id. at 42, 101 S. Ct. at 194. Use of the Ten
Commandments for a secular pu rpose, however, does n ot chang e their inherently
religious nature, and a particular governmental use of them is permissible under the
Establishment Clause only if it withstands scrutiny under the prevailing legal test.
As we discuss next, the use to which Chief Justice Moore, acting as a government
official, has put the Ten Commandments in this case fails that test.
For a practice to survive an Establishment Clause inquiry, it must pass the
three-step test laid out in Lemon v. Kurtzman, 403 U .S. 602, 91 S. C t. 2105 (1971).
The Lemon test requires that the challenged practice have a valid secular purpose,
not have the effect of advancing or inhibiting religion, and not foster excessive
government entanglement with religion. Id. at 612-1 3, 91 S. Ct. at 211 1.
We follow the tradition in this area by beginning with the almost obligatory
observation that the Lemon test is often maligned. See, e.g., Lamb?s Chapel v. Ctr.
Moriches Union Free Sch. D ist., 508 U.S. 384, 398, 113 S. Ct. 2141, 2150 (1993)
(Scalia, J., concurring) (?[N]o fewer than five of the currently sitting Justices have,
in their own opinions, personally driven pencils through the [Lemon test?s] heart
(the author of today?s opinion repeatedly), and a sixth has joined an opinion doing
so.?); Wallace v. Jaffree, 472 U .S. at 110 , 105 S. Ct. at 2517 (Rehnquist, J.,
dissenting) (?The three-part test has simply not provided adequate standards for
deciding Establishment Clause cases, as this Court has slowly come to realize.?);
Elenore Cotter K lingler, Case Comment, Constitutional Law: Endorsing a New
Test for Establishment Clause Cases, 53 Fla. L. Rev. 995 (2001). But it is even
more often applied.
What the Supreme Court said ten years ago remains true today: ?Lemon,
however frightening it might be to some, has not been overruled.? Lamb?s Chapel,
508 U.S. at 395 n.7, 113 S. Ct. at 2148 n.7. We applied the Lemon test in another
religious display case just days before this one w as orally argued. See King v.
Richmond County, No. 02-14146, slip op. 2541 (11th Cir. May 30, 2003). In
doing so, we observed that ?[e]ven though some Justices and commentators have
strongly criticized Lemon, both the Supreme Court and this circuit continue to use
Lemon?s three-pronged analysis.? Id. at 2545-46 (footnote omitted). Having
noted that again today, we proceed with the test.
Applying Lemon, the district court concluded that Chief Justice Moore?s
purpose in displaying the monument was not secular. It based that conclusion on
the Chief Justice?s own words, on the monument itself, and on the physical context
in which it appears. Glassroth, 229 F. Supp. 2d at 1299-1300. The court found the
case not as difficult as those in which the Ten Commandments display had ?an
arguably secular, historical purpose, fo r the evidence here does not even b egin to
support that conclusion, nor does the evidence support the conclusion that the Ten
Commandments were displayed as sort of a secular moral code.? Id. at 1301.
Instead, ?[t]he Chief Justice?s words unequivocally belie such purposes.? Id.
Citing Justice O?Connor?s concurring opinion in Wallace v. Jaffree, 472
U.S. at 74, 105 S. Ct. at 2499 (O?Connor, J., concurring), Chief Justice Moore
argues th at the district court erred by psychoanalyzing him and, as he puts it,
?dissecting [his] heart and min d.? Brief of Appellant at 42. Wallace v. Jaffree
involved legislative purpose, not that of an ind ividual governmental actor. 472
U.S. at 40, 105 S. Ct. at 2481. Besides, no psychoanalysis or dissection is required
here, where there is abundant evidence, including his own words, of the Chief
Justice?s purpose.
Chief Justice Moore testified candidly that his purpose in placing the
monument in the Judicial Building was to acknowledge the law and sovereignty of
the God of the Holy S criptures, and that it was intended to acknowledge ?God?s
overruling power over the affairs of men.? 1st Supp. Rec. Vol. 2 at 100; 1st Supp.
Rec. Vol. 3 at 34. In his unveiling speech , the Chief Justice described his purpose
as being to remind all who enter the building that ?we must invoke the favor and
guidance of Almighty God.? Glassroth, 229 F. Supp. 2d at 1297, 1322 (App. C).
And he said that the monument marked ?the return to the knowledge of God in our
land.? Id. at 1323. He refused a request to give a famous speech equal position
and prominence because, he said, placing ?a speech of any man alongside the
revealed law of God would tend to diminish the very purpose of the Ten
Commandments monument.? Id. at 1297.
Against the weight of all this evidence, Chief Justice Moore?s insistence in
his briefs and argument, and in part of his testimony, that the Ten Commandments
as presented in his monument have a purely secular application is unconvincing.
That argument is akin to the state?s contention in Stone that the fine print about
secular purpose on the Ten Commandments posters in that case gave them a
constitutionally perm issible purpose. 449 U.S. at 41, 101 S. Ct. at 193. At the
bottom of each poster was a statement that: ?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.? Id., 101 S. Ct. at
193. The Supreme Court said, ?under this Court?s rulings, however, such an
?avowed? secular purpose is not sufficient to avoid conflict with the First
Amendment.? Id., 101 S. Ct. at 193 -94. The same is true here.
Under our circuit law, the purpose inquiry is a factual one, see ACLU v.
Rabun County Chamber of Commerce, 698 F.2d 1098, 1110-11 (11th Cir. 1983),
and on appeal we are obligated to accept the district court?s findings of fact unless
they are clearly erron eous, Anderson v. City of Bessemer City, 470 U.S. 564, 573,
105 S. Ct. 1504, 1511 (1985). Clearly erroneous they are not. Moreover, even if
we were free to review the determination de novo, having examined the record
ourselves, we agree with the district court that it is ?self-evident? that Chief Justice
Moore?s purpose in displaying the monument was non-secular. Given all of the
evidence, including the Chief Justice?s own words, we cannot see how a court
could reach any other conclusion.
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