CIVIL ACTION NO. 99-508
SARAH DOE and THOMAS DOE,
on behalf of themselves and their
minor child, JAN DOE,
PLAINTIFFS,
V.
ORDER
HARLAN COUNTY SCHOOL DISTRICT
and DON MUSSELMAN, in his official capacity
as Superintendent of the Harlan
County
School District,
DEFENDANTS.
****************
This matter, which presents a First Amendment challenge to
multiple displays of the Ten Commandments and other documents1 is
before the court upon the plaintiffs' motion for a preliminary injunction (No.
2), the plaintiffs' motion for a protective order (No. 4), the defendants'
motion to dismiss (No.12), the defendants' motion for a more definite statement
(No. 14), and the defendants' motion to strike the affidavit of Sarah Doe (No.
16).2 This court held a hearing on April 20, 2000 and,
having
reviewed the arguments of counsel and being otherwise sufficiently advised,
will grant the plaintiffs motions and will deny the defendants motions.
Motion to Dismiss
For the
reasons explained below, the plaintiffs have stated a claim for a First
Amendment violation. The defendants also have raised two procedural grounds for
their motion to dismiss, arguing that the plaintiffs lack standing to bring
their claims and that they were ineffectually served.
The defendants contend
that the plaintiffs lack standing to bring these actions because they have not
alleged "injuries in fact."
The injury-in-fact component of standing requires a plaintiff to have a person JudgesDec1.htm al stake in the matter to be adjudicated. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). The defendants correctly note that abstract or hypothetical
injuries are insufficient. O'Shea v. Littleton,
414 U.S. 488, 494 (1974). The plaintiffs in this lawsuit, however, have
suffered and are under the threat of suffering concrete injuries.
In Washegesic v. Bloomingdale Public Sch., 33 F.3d 679, 683 (6*" Cir. 1994),
the court considered a challenge to a public school's display of a portrait of
Jesus. A former student was determined to have standing because he would come
into unwelcome direct contact with the display while visiting the school to
attend sporting
events or meet former teachers. Id. The court held that even a member of the PTA
or of the public would have standing if she attended events in the school and
"took the portrait as a serious insult to her religious
sensibilities." Id. Like the
plaintiff in that case, the plaintiffs here a current Harlan County school
student and her parents have-standing because they must come into
contact-with the displays of the Ten Commandments whenever they enter the
Harlan County schools to attend classes, parent-teacher conferences, or other
meetings. Their contact with the displays of the Ten Commandments is far more
regular than that of the former student in Washegesic.
The defendants cite
several Seventh Circuit cases holding that in order to have standing in an
Establishment Clause challenge, a plaintiff must undertake a special burden or
alter his or her normal routine to avoid the offensive object. In Gonzales v. North Township of Lake
County, Ind., 4 F.3d 1412 (7'h Cir. 1993), for example, the plaintiffs
challenged the presence of a crucifix in their city's park. The plaintiffs' discontinued use of an area
within the park conferred standing. Id.
at 1417. Here, the plaintiffs have not specifically alleged that the displays
have forced them to alter their normal routines. The necessary alterations
would be highly impractical, however, because the plaintiff student in this
action must attend her middle school, and therefore, the individual plaintiffs
have met the standing requirement for their First Amendment claim.
The defendants next claim
that they were not properly served under Fed. R. Civ. P. 4. Rule 4(j)(2)
provides that a county may be served "by serving the summons and complaint
in the manner prescribed by law of that state for the
service of summons." The Kentucky Rules of Civil Procedure allow a summons to be served by mail. Ky. R. Civ. P. 4.01 (a). Under the Kentucky rule, the clerk of court actually mails the summons. Here, the plaintiffs placed the summons in the mail themselves, and the defendants argue that the service was ineffective because the clerk of court did not place the summons in the mail. The federal clerks of court do not, however, place summons in the mail for plaintiffs. The Federal Rules of Civil Procedure permit service "in the manner" allowed by their state counterparts ÷ here, mailing. That the plaintiffs rather than a clerk of court mailed the summons does not render it ineffective. Accordingly, the defendants' motion to dismiss will be denied.
Motions for a Protective
Order, for a More Definite Statement,
The plaintiffs have moved for a protective order
permitting them to proceed under the pseudonyms Sarah, Thomas, and Jan Doe. The
defendants ask the court to order a more definite statement and to strike the
affidavit of Sarah Doe based on the anonymity of the plaintiffs. For the
reasons stated below, the court will grant the plaintiffs' motion and will deny
the defendants' motions.
Generally, a complaint must
state the names of all parties. Fed. R. Civ. P. 10(a). However, the court may
recognize an exception to this rule and permit plaintiffs to proceed
pseudonymously. Doe v. Shakur. 164 F.R.D. 359, 360 (S.D.N.Y.
1996). Several factors guide the analysis of whether a plaintiff's privacy
interest substantially outweighs the presumption of open judicial proceedings. Doe v.
Stegall, 653 F.2d 180, 185 (5th
Cir. 1981); Doe v. Shakur, 164 F.R.D.
359, 360 (S.D.N.Y. 1996). These factors
include: (a) whether the plaintiffs seeking anonymity are suing to challenge
governmental activity, (b) whether prosecution of the suit will compel the
plaintiffs to disclose information "of the utmost intimacy," and (c)
whether a child plaintiff is involved. Stegall, 635 F.2d at 185.Ê In this case, these factors justify the
plaintiffs' anonymity.
Plaintiffs Sarah and Thomas Doe,
adult citizens residing in Harlan County, Kentucky, are the parents of the
minor child Jan Doe, who attends a middle school in the Harlan County School
District. By challenging the school
district's practice of hanging the Ten Commandments in classrooms, .the
plaintiffs are challenging governmental activity. The anonymity of the
plaintiffs will not adversely affect the defendants. The plaintiffs seek only
an injunction, not individual damages. Because of the public's interest in this
issue, the plaintiffs may be subjected to humiliation and harassment if their
identities are disclosed.
In a similar case, the Fifth
Circuit held that the showing of possible harm, the risk of serious social
ostracization based upon religious attitudes, and the fundamentally private
nature of religious beliefs required that a child litigant remain
anonymous. Doe v. Stegall, 653 F.2d at 185. Because this
case also involves a religious matter, a child litigant, and a community which
is highly interested in this issue's resolution, a balancing of interests
justifies the plaintiffs' continued anonymity. Thus, the plaintiffs are
entitled to a protective order permitting them to proceed pseudonymously, and
the defendants' motion for a more definite statement will be denied.
The defendants also contend that Jan Doe is not a
necessary and indispensable party to this action. The court rejects this argument because as a Harlan County
student, Jan Doe has daily contact with the challenged displays.
Having concluded that the
plaintiffs are entitled to proceed pseudonymously, the court will deny as moot
the defendants' motion to strike the affidavit of Sarah Doe on the basis of her
anonymity.
A preliminary injunction
preserves the relative positions of the parties until a trial on the merits can
be held. Univ. of Texas v. Camenisch,
451 U.S. 390 (1981). To receive a preliminary injunction, a plaintiff must
establish: (1) a strong or substantial likelihood of success on the merits; (2)
that he or she will suffer irreparable harm in the absence of an injunction;
(3) that others will not suffer substantial harm if the injunction is granted;
and (4) that an injunction will serve the public interest. Connection Distrib. Co. v.
Reno, 154 F.3d 281, 288 (6th
Cir. 1998). These four factors guide
the discretion of the court and are not unbending prerequisites. Id.
A party need not prove his or
her case in full at a preliminary-injunction hearing. Camenisch,451 U.S. at 395.
The court must, however, make findings of fact and conclusions of law,
which are not binding on a trial on the merits, United States v. Owens, 54 F.3d 271, 277 (6th Cir. 1995),
when deciding a motion for a preliminary injunction. The court need not make specific findings of fact regarding each
of the four factors if fewer are dispositive.
G & V Lounge, Inc. v. Michigan Liquor Control Comm'n. 23 F.3d
1071, 1076 (6th Cir. 1994).ÊÊ In a case
brought under the First Amendment, the
likelihood of success on the merits frequently may be the determinative factor.
Connection Distrib., 154 F.3d at 288.
The schools in Harlan
County School District have copies of a version of the Ten Commandments posted
in their classrooms, including the classroom of Jan Doe. When this suit was
filed, the displays consisted of framed copies of one version of the Ten
Commandments which were not part of larger educational, historical, or
retrospective exhibits. After this
lawsuit was filed, the defendants amended the displays to include several other
documents.3 At oral
argument, the defendants conceded that they did so in an attempt to bring the
displays within the parameters of the First Amendment and to insulate
themselves from suit. The displays, both in their original form and as amended,
are readily visible to the plaintiffs and to other students who attend the
schools.
As they now exist,4 the displays consist of (1) an excerpt from the Declaration of Independence; (2) the Preamble to the Constitution of Kentucky; (3) the national motto of "In God We Trust"; (4) a page from the Congressional Record of Wednesday, February 2, 1983, Vol. 129, No. 8, declaring it the Year of the Bible and including a copy of the Ten Commandments; (5) a proclamation by President Abraham Lincoln designating April 30, 1863 a National Day of Prayer and Humiliation; (6) an excerpt from President Lincoln's "Reply to Loyal Colored People of Baltimore upon Presentation of a Bible" reading, "The Bible is the best gift God has ever given to man."; (7) a proclamation by President Ronald Reagan marking 1 983 the Year of the Bible;5 (8) the Mayflower Compact; (9) a recently enacted Kentucky statute, K.R.S. 158.195, which the defendants allege permits the posting of the Ten Commandments;6 and (10) a Harlan County School Board resolution permitting the posting of the Ten Commandments. While some of the documents are displayed in their entirety, the defendants have excerpted a small portion of others to include only that document's reference to God or the Bible with little or no surrounding text.5
1. Likelihood Of Success On The
Merits
The plaintiffs seek injunctive
and declaratory relief under 42 U.S.C. 1983, arguing that the continued
posting of the Ten Commandments in the Harlan County schools violates their
First Amendment rights. Section 1983 creates a federal cause of action against
any person who, acting under color of state law, deprives another of his
federal rights. See Conn v. Gabbert,
526 U.S. 286, 290 (1999). Section 1983
does not create separate substantive rights, but merely provides a method of
vindicating independently conferred federal rights. A/bright v. Oliver, 510 U.S. 266, 271 (1994). A plaintiff must allege two elements to
establish a prima facie case under ¤ 1983: (1) that the action occurred
"under color of law"; and (2) that the action was a deprivation of a
constitutional right or a federal statutory right. Parratt v. 451 U.S.
527, 535 (1981). In a ¤ 1983 case
brought against a defendant in his official capacity, the governmental entity
is liable under ¤ 1983 only when the entity itself is a "moving
force" behind the deprivation; thus, in an official-capacity suit, the
entity's policy or custom must have played a part in the violation of federal
law. Kentucky v. Graham, 473 U.S. 159,
166 (1985).
Here, the plaintiffs have shown
a substantial likelihood of success on the merits for both elements required by
a ¤ 1983 claim. First, as shown by the
Board's resolution, the posting of the Ten Commandments was the official policy
of the Harlan County schools, approved by the school board and other school
officials. That policy serves as a driving force behind the constitutional
violations alleged in this case. See
Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). Although the defendants contend that a group
of county residents chose the displays' contents, the displays are nevertheless
attributable to the county because they were posted in accordance with an
official policy promulgated by the school board.
Second, violations of the First
Amendment such as those alleged in this case are remediable through a ¤ 1 983
claim. The First Amendment declares, "Congress shall make no law
respecting an establishment of religion . . . ." U.S. Const. amend 1.
Pursuant to the Establishment Clause of the First Amendment, governmental
bodies may not "take a position on questions of religious belief or [make]
adherence to a religion relevant in any way to a person's standing in the
political community." County of Allegheny v. ACLU, 492 U.S. 573,
594 (1989) (quoting Lynch v. Donnelly,
465 U.S. 668, 687 (1984) (O'Connor, J., concurring)). Government actions challenged under the Establishment Clause are
reviewed under the three-part test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971).Ê Under Lemon,
the governmental action must first have a secular purpose and "second, its
principal or primary effect must be one that neither advances nor inhibits
religion." Finally, the governmental action must not lead to
"excessive governmental entanglement with religion." Id. at 612-13. In the past decade, the
Supreme Court has reframed the Lemon
analysis, focusing on whether either the purpose or the effect of the
challenged governmental action results in the endorsement of religion. Edwards
v. Aguillard, 482 U.S. 578, 585 (1987). Courts in this circuit treat
the endorsement test as a refinement or clarification of the Lemon analysis, Granzeier v. Middleton. 173 F.3d 568, 573 (6th
Cir. 1999), and this court will apply that test
to decide whether the Ten Commandments displays, both in their original form and as amended, pass constitutional muster.
The endorsement test forecloses
governmental action that "a reasonable
observer would think is
an endorsement of religion by the government." Id. Justice
O'Connor formulated the
endorsement test, explaining:
The purpose prong of the Lemon test asks whether government's actual purpose is to endorse
or disapprove of religion. The effect prong asks whether, irrespective of
government's actual purpose, the practice under review in fact conveys a
message of endorsement or disapproval. An affirmative answer to either question
should render the challenged practice invalid.
Lynch, 465 U.S. at 690 (O'Connor, J., concurring).7
In other words, the challenged conduct must have both an actual secular purpose
and also the effect of neither advancing nor hindering religion. Because the government's use of a religious
reference or of an object with religious meaning may be appropriate under some
circumstances but not others, the court must assess the constitutionality of
government conduct with careful attention to the manner and context of the
action. Compare Allegheny, 492 U.S. 573, with
Lynch, 465 U.S. 668 (display of
creche held
unconstitutional in former but
constitutional in latter).
The purpose prong of the
endorsement analysis asks whether a secular purpose
actually motivated the government's action.
In considering the purpose prong . . . the focus of
the inquiry is on the intentions of the government. Namely, did the government intend to7 convey a message of endorsement or
disapproval of religion when it implemented the challenged policy. Courts should generally be deferential to
the government's articulation of a secular purpose. The government's secular purpose, however, must be sincere and
not a mere sham. Although the
government's purpose need not be exclusively secular, a practice will violate
the Establishment Clause if it is entirely motivated by a purpose to advance
religion.
Coles v. Cleveland
Bd. of Educ., 171 F.3d 369,
384 (6th Cir. 1999), citing
Edwards v. Aguillard. 482 U.S. 578, 585-86 (1987); Lynch, 465 U.S. at 681 n.6; Wallace
v. Jaffree, 472 U.S. 38, 56
(1985).Ê See Granzeier. 173 F.3d
at 574.Ê Here, the court will look to
the school district's proffered purpose as stated in the Board's resolution,
the brief history of the Ten Commandments displays, and the displays themselves
to determine whether the displays serve an actual, secular purpose.
In their original form, the Ten
Commandments displays, consisting only of the Commandments unaccompanied by any
other documents, lack any secular purpose. The Ten Commandments are a
distinctly religious document, believed by many Christians and Jews to be the
direct and revealed word of God, and their very nature precludes a finding of a
prevailingly secular purpose here.
Indeed, "the pre-eminent purpose for posting the Ten Commandments .
. . is plainly religious in nature." Stone
v. Graham. 449 U.S. 39, 41Ê (1980).8
The Commandments do not confine
themselves to arguably secular8matters, such as honoring one's parents,
killing or murder, adultery, stealing, false witness, and covetousness. See Exodus 20:12-17; Deuteronomy
5:16-21.Ê Rather, the first part of the
Commandments concerns the religious duties of believers: worshipping the Lord
God alone, avoiding idolatry, not using the Lord's name in vain, and observing
the Sabbath Day. See Exodus 20:1-11; Deuteronomy 5:6-15.
Id. at 41-42.Ê In
their briefs and at oral argument, the defendants suggest that the Ten
Commandments were posted in order to teach Harlan County students about American
religious history and the foundations of the modern state. The defendants also concede that the
displays purport to demonstrate America's Christian heritage.9Ê The narrow scope of the displays - a single
religious text unaccompanied by any interpretation explaining its role as a
foundational document - can hardly be said to present meaningfully the story of
this country's religious traditions, and for this court to conclude that the
original displays had a secular purpose belies reason,
The challenged displays now
include other documents which the defendants argue illustrate the displays'
secular purpose: the education of Harlan County students concerning American
religious history. As the Supreme Court has made abundantly clear in its
articulation of the endorsement test, the court must examine 9
the actual purpose of the use of the religious
objects and should not blindly accept an allegedly secular purpose which is
contrary to the facts of the case.
Furthermore, the requirement of a secular purpose "is not satisfied
. . . by the mere existence of some secular purpose, however dominated by
religious purposes." Lynch, 465
U.S. at 691 (O'Connor, J., concurring). While the government's stated purpose
may be entitled to some deference, the history of the displays here and the
choice of documents in those displays contradict the County's assertion. That
the displays originally consisted solely of the Ten Commandments and that they
were altered - albeit without any legally significant change - only after this
lawsuit was filed weigh heavily against the finding of a secular purpose,
The displays were posted because
of the Board's resolution, but the resolution serves no secular purpose. The
resolution's repeated references to religion make clear that the postings were
to made in order to promote and endorse religion. Likewise, a review of the other documents in the displays
forecloses a characterization of the purpose of the displays as secular. The county narrowly tailored its selection
of foundational documents to
incorporate only those with specific references to Christianity and texts that,
while promulgated by the federal government, were chosen solely for their
religious references. The displays do not appear to have been intended to
educate Harlan County students, in a balanced or accurate manner, about the
traditions and texts that were drawn upon by this nation's founders or about
the complex role religion has played in this country's history. In short, as
shown by the facts of the case and the displays themselves, the exhibits - both
in their original form and as altered - serve no secular purpose, nor were they
ever intended to do so. As the displays clearly lack a secular purpose, they
violate the First Amendment and the court's analysis need go no further. See Wallace,
472 U.S. at 56.Ê The court, however,
will complete the Lemon analysis to
determine whether the effect of the displays also violates the Establishment
Clause.
In determining such an effect,
the court must ask whether an objective observer acquainted with the displays
would perceive them as a governmental endorsement of religion. See ACLU v.
Capitol Square Review and Advisory
Bd., ÷ F.3d ÷ , 2000 WL 463566 (6th Cir. April 25, 2000). The
objective-observer standard parallels the reasonable-person standard in torts
law; the question is not whether one particular, subjective, uninformed
observer would view
the displays as
an endorsement of religion but whether an objective, reasonable,
knowledgeable observer would do so. Here,
the prevailing effect of the displays is one of governmental endorsement of
religion.
The overriding theme of each
individual document as presented in the displays and of the displays as a whole
is one of religion and more specifically of Christianity. The first document is
a copy of the Congressional Record -from February 2, 1983, proclaiming that
year the Year of the Bible and reflecting the remarks of Representative Phillip
M. Crane about his personal beliefs concerning the importance of the Bible and
the Ten Commandments, a version of which is included in the remarks. The next
document consists of two brief excerpts: one from the Declaration of
Independence, "All men . . . are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the pursuit of
happiness," and one from the Constitution of Kentucky, "We, the
people of the Commonwealth of Kentucky, grateful to Almighty God for the civil,
political and religious liberties we enjoy, and invoking the continuance of
these blessings, do ordain and establish this Constitution," The next
document is President Lincoln's Proclamation on of a Day of Prayer. Issued in
1863, it confesses to God and seeks forgiveness for national sins committed
during the Civil War. Another presidential proclamation follows, from President
Reagan, declaring 1983 the Year of the Bible in honor of its influence in
shaping America.10 A copy .of the Mayflower Compact follows, in
which the colony's founders invoke "the name of God" and explain that
their journey was taken, among other reasons, "for the glory of God and
advancement of the Christian faith." Finally, bearing a picture of Abraham
Lincoln, the next states, "The Bible is the best gift God has ever given
to man." Also posted is the Board's resolution, which, as discussed above,
is overtly religious.
While a display of some of these documents may not have the effect of endorsing religion in another context, they collectively have the overwhelming effect of endorsing religion within the context of these displays. No reasonable observer of the displays could conclude otherwise. Each and every document refers to religion. Several have been edited to include only their religious references. Indeed, the only unifying element among the documents is their reference to God, the Bible, or religion. Furthermore, the displays lack an explanation of the documents' historical significance or of the reasons for their references to religion. Removed from their historical context and p