EASTERN DISTRICT OF KENTUCKY
LONDON DIVISION
SARAH DOE AND THOMAS DOE, on behalf
of themselves and their minor child, Jan Doe,
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Plaintiffs )
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v. ) Civil Action No. 99-508
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HARLAN COUNTY SCHOOL DISTRICT; and )
DON MUSSELMAN, in his official capacity )
as Superintendent of the Harlan County )
School District )
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Defendants )
__________________________________________)
MEMORANDUM OF DEFENDANT HARLAN COUNTY SCHOOL DISTRICT,
AND DON MUSSELMAN IN RESPONSE TO PLAINTIFFS' CONSOLIDATED REPLY MEMORANDA IN SUPPORT OF PLAINTIFFS' MOTIONS FOR
PRELIMINARY INJUNCTION AND IN RESPONSE TO
DEFENDANTS' MOTIONS TO DISMISS, AND IN SUPPORT
OF DEFENDANTS’ MOTION FOR ORAL ARGUMENT
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INTRODUCTION
This action arises out of a Complaint filed by the American Civil Liberties Union, Sarah Doe and Thomas Doe, on behalf of themselves and their minor child, Jan Doe (hereafter "Plaintiffs") against Harlan County, Kentucky and its Superintendent Don Musselman (hereafter "Defendants"). That Complaint alleges generally that the Defendants have posted a copy of the Ten Commandments in the Harlan County Schools in violation of the establishment of religion provisions of the First Amendment to the Constitution of the United States and 42 U.S.C. € 1983. The Plaintiffs seek temporary and permanent injunctive relief enjoining and restraining the Defendants from so displaying the Ten Commandments which are contained in Vol. 129 of The Congressional Record containing the Proceedings and Debates of the 98th Congress, First Session dated Wednesday, February 2, 1983, No. 8, claiming it is a “religious” document. The same attorneys, representing the American Civil Liberties Union of Kentucky, simultaneously filed similar actions against Pulaski County, Kentucky and its Judge-Executive, and against McCreary County, Kentucky and its Judge Executive.
The Defendants moved to Dismiss the Complaint pursuant to Rule 12 (b) (5) and Rule 12 (b) (6), F.R.C.P., for a number of reasons. On January 18, 2000, the ACLU, on behalf of all of the Plaintiffs in the three actions, filed a Memorandum styled "Consolidated Reply Memoranda in Support of Plaintiffs' Motions for Preliminary Injunction and in Response to Defendants’ Motions to Dismiss" (hereafter "Plaintiffs' Memo"). As shown below, that Memorandum fails to even address most of the authorities and a number of important points raised by Defendants’ Motion to Dismiss, and is otherwise lacking in merit. The Court, therefore, must disregard the Plaintiffs' Memorandum and grant the Defendants' Motion to Dismiss.
Defendants have also moved the Court to grant an oral argument on their Motion to Dismiss. As shown below, the official public documents of our civil government involved in this case which the ACLU seeks to censor and suppress from public buildings, their allegations and the ACLU’s first impression issues of law raised are unique, and the Defendants believe that oral argument would assist the Court in understanding and adjudicating their Motion to Dismiss and Arguments of fact and law in support of the foregoing assertions are set out below.
First and foremost, there is nothing in the First Amendment to the United States
Constitution or in the Kentucky Constitution which permits any suppression or censorship of any display of public acts or historic documents which reflect the official and permanent history of American government. Each branch of federal or state government publishes an official record reflecting the official actions and political histories of our civil government which may not be altered or suppressed for any reason, including particularly religious references in those historic documents. Further, it is absurd to claim, as the ACLU does, that the First Amendment requires or even authorizes an Article III Court to restrict in anyway a historic display of any official and historic document of our civil government because of Christian or religious references in those official government documents. That argument would in essence, permit the suppression, alteration or rewriting of American or Kentucky history, which is a radical political notion indeed. We, the people have an absolute and unfettered right to display, read and understand the public acts of each of the separate, but equal branches of our civil government without any interference, public or private, or censorship and restriction of our access to the official public documents reflecting the public business of civil government. Original documents and official sources are essential to We, the people understanding our past, and teaching official history to our children and other citizens which would be impossible without reference to and display of those original official documents of our civil government in public buildings.
I. PLAINTIFFS MISLEAD THE COURT.
The Plaintiffs' Memorandum simply fails to address the unique and historic facts of this case of first impression. Plaintiffs would have the Court believe, and hold, that this case somehow only concerns the usual arguments against a religious custom concerning an establishment of religion. Such is not the case at all. The central concern in this case is an unwarranted attempt by the ACLU, and those acting in concert with it, to suppress, restrict and censor any public display of six (6) of our Republic's foundational governmental that is “political” documents, including public acts of the United States Congress and of Presidents of the United States. Any attempt by the judiciary to prevent public or school officials from a display of such official political documents from the executive and legislative branches reflecting their official acts, decrees and proclamations is a direct affront to liberty and undermines basic constitutional notions of the public’s right to know about the conduct of the affairs of civil government which is fundamental to a free society, and is patently un-American. Censorship or restriction of the People’s right to know about the public business of their government is totalitarian. Further, a court’s suppression of executive and legislative documents raises serious and clear questions about the constitutionally mandated separation of powers; it also threatens to deprive We, the People, of knowledge of the very foundation documents and principles of our American civil government and system of justice; see, Gregg v. Barrett, 594 F. Supp. 108 (D. D.C. 1984)(federal court lacks authority to regulate contents of Congressional Record).
The ACLU calling the Defendants' displays of official public documents "religious documents" obviously does not make them such. Throughout the various memoranda which they have filed with this Court, the Plaintiffs have consistently referred to the challenged historic exhibits of such official documents of our civil government as displays of "religious documents." This is false and misleading. The official public acts of the President of the United States and of the United States Congress are “organic utterances” of our civil government and are clearly not in any way “religious documents.” This Court is clearly competent to see the plain meaning here and is able to let the content of such official writings, particularly official government documents speak for themselves. This Court should not allow itself to be misled. For example, America’s colonial governments adopted the Ten Commandments not as a religious object of worship or an icon, but as the basis for their civil and criminal law, as illustrated on April 3, 1644, when the New Haven Colony Charter was adopted establishing that “[t]he judicial laws of God, as they were delivered by Moses be a rule to all the courts in this jurisdiction”.
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| intimidation or other overt acts of censorship or suppression of any portion of the Declaration for any reason.
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2. The Preamble to the Constitution of the Commonwealth of Kentucky. " The ACLU has a political agenda to remove any and all public references to God or our Lord, but it is a simple historic truth that the framers of Kentucky’s Constitution of 1891 acknowledged Almighty God to be the source of the Commonwealth’s public and private liberties in the following words:
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 present Constitution, as signed and promulgated September 28, 1891 [has been] held to be, in all its parts, the existing organic law of the state." Downs v. Commonwealth, 92 Ky. 605, 18 S.W. 526, 527 (1892). Kentucky courts are bound to recognize and apply provisions of the state Constitution, "for to do otherwise would breach the social compact which binds us one to another and would amount to an abdication of judicial responsibility." St. Leger v. Commonwealth, 912 S.W.2d 34, 39 (Ky. 1995). This Court has no jurisdiction or authority to restrict, censor or suppress the display of or reading of the Preamble to the Kentucky Constitution in a public building.
3. The national motto, "In God we trust," adopted as such by Congress on July 20, 1956. 36 U.S.C. € 186. The national motto also can not be restricted or censored or in any way be somehow repugnant to the establishment clause of the First Amendment. Aronow v. United States, 432 F.2d 242 (9th Cir. 1970).
| 4. A page from the Congressional Record of Wednesday, February 2, 1983, Volume 129, No. 8, which contains an official legislative record of the public discussions of the U.S. Senate and House of Representatives Joint Resolution 487. Since Saturday, August 11, 1787, during the Constitutional Convention in Philadelphia when James Madison and Edward Rutledge proposed:
“that each House shall keep a journal of proceedings, and shall publish the same from time to time;”
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| U.S. Code € 901 et seq |
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5. A proclamation by President Abraham Lincoln signed on the thirtieth day of March, in the year of our Lord one thousand eight hundred and sixty-three, and of the Independence of the United States the eighty-seventh, designated March 30, 1863, as a National Day of Prayer and Humiliation. Proclamations of our Presidents are to receive by order of the United States Congress the widest possible distribution to We, the People. This Court has no jurisdiction to limit that public display or distribution in any way.
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| 6. An excerpt from President Abraham Lincoln's "Reply to Loyal Colored People of Baltimore upon Presentation of a Bible," delivered September 7, 1864; see, Roy P. Basler, The Collected Works of Abraham Lincoln, vol. 7, page 542 ; Carl Sandburg, Abraham Lincoln: The War Years, vol. 3, page 224 (Sangamon ed., 1947)
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| 7. A Proclamation by President Ronald Reagan, signed on the third day of February,
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| 8. The Mayflower Compact, signed at Cape Cod, Massachusetts on November 11, 1620, which has been called by many historians America’s “First Constitution.” The action of suppression and censorship of those official public documents which the ACLU and Plaintiffs ask this Court to take is without precedent in American jurisprudence. Plaintiffs have cited no case where any Court has prohibited the public display of the United States Constitution, the Declaration of Independence, the National Motto, the Congressional Record, a Presidential Proclamation, a Presidential speech or official public letter, or any state Constitution. Extensive research has failed to disclose a single instance in which any court in America has even been asked to do so. The reason |
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| is obvious; such a request amounts to nothing less than an attempt to effect a political revolution through threats, intimidation and misuse of the judicial process. If the ACLU can subtly persuade this Court that it somehow has any judicial authority to suppress portions of these official and historic American public political documents, which public documents and the political principles they contain are the foundations of American liberty and our system of justice and civil government, then the ACLU and/or others in concert therewith could also suppress the entire document. If the ACLU effort to suppress by injunction these organic utterances of our civil government in these locations in county courthouses or public schoolhouses is successful, the ACLU and others may seek to forbid their display or publication in all public places in America. America’s official foundations of civil government history would thus be suppressed, and in effect, be overturned and rewritten. It requires but little perspicacity to realize the revolutionary political consequences which might follow were the Court to grant the Plaintiffs' extraordinary request. And, lest it be objected that such dire results would not necessarily follow if Plaintiffs' injunctive relief were granted, the Court should keep in mind President James Madison's dictum that "it is proper for the citizens to take alarm at the first experiment upon their liberties." |
The Court, therefore, should deny the Plaintiffs' unprecedented request, and must grant
II. PLAINTIFFS HAVE NOT CONTROVERTED PLAINTIFFS' ARGUMENTS OR AUTHORITIES.
The Plaintiffs' Memorandum is significant for what it does not say. The Plaintiffs have completely ignored the nature of the official public “political” as opposed to “religious” documents they seek to suppress. Further, the Plaintiffs fail to refer to or distinguish a number of the Defendants’ authorities and key arguments. Moreover, their Memorandum is composed primarily of the conclusory assertions of their counsel, that these official “political” documents are somehow “religious” which unsupported by the citation of any authority whatever. The Plaintiffs have also failed to distinguish the Defendants’ cases and other legal, official and historic authority, or to show that those authorities do not stand for the propositions cited, or that they are otherwise inapplicable to the case at bar.
In their Memorandum, the Defendants cited at least seventy-three cases and nine other authorities. In response, Plaintiffs have cited only seven inappropriate “religion” cases, which do not deal in any way with these fundamental and historic American public documents of our civil government upon which our free public institutions and system of laws and justice are based. The Plaintiffs have not even attempted to distinguish any of the cases cited by the Defendants. Moreover, a number of these omissions are quite significant.
Mootness
The Defendants have premised their Motion to Dismiss mootness arguments on the assertion that the current historic displays of official public documents of our civil government comply with the requirements of Stone v. Graham, 449 U.S. 39 (1980), as subsequently interpreted by the United States Supreme Court in Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995) and by the Sixth Circuit in Washegesic v. Bloomingdale Public Schools, 813 F. Supp. 539 (W.D. Mich. 1993), aff’d 33 F.3d 679 (6th Cir. 1994), and A.C.L.U. v. Wilkinson, 895 F.2d 1098 (6th Cir. 1990); see, Defendants’ Memorandum at 16-20,
All of these cases constitute binding precedent in this Court. Yet, in responding to the Defendants’ Motion to Dismiss, the Plaintiffs have not even mentioned Stone, Pinette, or Wilkinson. The fourth of these cases, Washegesic, is cited at page 4 on the issue of standing. Plaintiffs have completely failed to controvert Defendants’ assertion that, under Washegesic, Defendants’ inclusion of the Congressional Record which contains the Ten Commandments as part of a larger display renders it constitutional and moots the instant case.
The Church of the Holy Trinity v. United States
Defendants have devoted significant discussion to Church of the Holy Trinity v. U.S., 143 U.S. 457 (1892); see, Defendants’ Memorandum at 10-13. They have argued that since this unanimous holding of the United States Supreme Court, which has never been overruled, declares flatly as a matter of history, law and fact that “this is a Christian nation,” 143 U.S. at 471, the United States Congress was fully justified in including “a uniquely Christian version” of the Ten Commandments in The Congressional Record in which Congress urged the President of the United States to declare 1983 “The Year of the Bible” because “…Biblical teachings inspired concepts of civil government that are contained in our Declaration of Independence and the Constitution of the United States.” Congress adopted the remarks of Congressman Phillip M. Crane of Illinois, who said that:
I believe that it would serve an educational purpose for our citizens to become familiar with the important role which the Bible and the Ten Commandments have played in molding our American traditions and laws.
The page from The Congressional Record Defendants have posted along with these other official public documents of our civil government were adopted by Defendants in an official resolution in December 1999, in a conscious effort to avoid any “religious” controversy over which version of the Ten Commandments should be posted. Obviously, various religious denominations have slightly varying versions of the Ten Commandments and may even differ over the religious significance of the Ten Commandments. However, the public political, legal and historical significance of these Ten Commandments to America’s legal and civil political institutions cannot be seriously questioned as reflected in the historic official public documents which Defendants have displayed, responsibly in order to avoid any misunderstanding or create an avoidable controversy over religion.
This historic holding that America is a “Christian nation” because its laws and civil public institutions are based on the Ten Commandments and other Biblical principles from the Old and New Testaments is obviously binding precedent in this Court and, if applicable, is absolutely dispositive of the instant action. Yet the Plaintiffs have made no mention whatever of this key U.S. Supreme Court holding. And while Plaintiffs characterize Defendants’ argument on this point as “quite extraordinary,” see, Plaintiffs’ Memorandum at 8, they have not even attempted to show that Holy Trinity Church is no longer a part of American political history or good law or that it does not apply to the case at bar. Therefore, the Court should hold that Plaintiffs have tacitly conceded this point sub silentio. For the Court’s convenience, a copy of that historic opinion is submitted herewith as an addendum to this Memorandum along with all of the 66 historic public documents collected as historic and official authorities to support the conclusion reached by the unanimous United States Supreme Court as precedent in holding that:
’no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation we find everywhere a clear recognition of the same truth&Mac185; this is a Christian nation.
(1837-1910)
KRS 158.195. Reading and Posting in Public Schools of Texts and Documents on American History
Defendants have also asserted, repeatedly, that their display of historical and official
documents of our civil government is authorized by KRS 158.195. This argument, based on a 1992 Kentucky law, if accepted, is dispositive of the instant action. However, the ACLU and Plaintiffs have made no mention whatever of KRS 158.195, which one of the ACLU’s attorneys has in a public forum conceded was constitutional. In 1992, the Kentucky General Assembly recognized in the enactment of KRS 158.195, which is attached, that there is nothing in the Kentucky Constitution or the First Amendment to the United States Constitution which permits or requires the rewriting of American or Kentucky history or the suppression or censorship of any official public act or document of any branch of federal or state government reflecting the official political acts of civil government as official histories for any reason, particularly because of any religious references in those historic documents. The General Assembly passed KRS:158.195 to halt and reverse the censorship and suppression of the official documents of our political history and prevent further censorship in the future. Sadly the ACLU and others have continued to intimidate teachers and public officials subverting out political history by removing these official documents from our public schools and public buildings.
Conclusory Assertions
In support of their mootness argument, Defendants cited thirteen cases, at least four of which constitute binding precedent in this Court; see, Defendants’ Memorandum at 14-16. In their response to this point, Plaintiffs have cited no cases at all; see, Plaintiffs’ Memorandum at 2-3. Instead, Defendants cavalierly dismiss the Plaintiffs’ displays of historical political documents as “unrelated statements supporting a sectarian world view,” and “isolated statements supporting a sectarian religious view,” and “indicia of Christian hegemony,” whose “purpose and effect are transparent.” Defendants’ Memorandum at 2-3, 8.
Plaintiffs have offered no authority or argument to prove that such is the case; and the official and public historic government documents reflecting America’s official and permanent political history which the ACLU characterize as “religious and sectarian” are: The National Motto of the United States; the Declaration of Independence; the Preamble to Kentucky Constitution; the Congressional Record of February 2, 1983; the Mayflower Compact; a Presidential proclamation; and a quote from a letter of Abraham Lincoln’s. Defendants strenuously insist that the Court must take judicial notice these are official political documents of our civil government, and thus bona fide and official public acts of the United States Congress and the President of the United States, and thus historic political American documents. Contrary to the Plaintiffs’ conclusory and unsupported assertion, these are official political documents and not “sectarian or religious” documents, nor are they either “unrelated” or “isolated”. See Title 44, U.S. Code € 901 et. seq. See also cases cited in the U.S. Supreme Court Digest under Judicial Notice of Public Acts of Congress and Legislative Journals. In all public matters, the printed journals including the Congressional Record, published in obedience to law, are the official and permanent history of American government and thus are competent evidence of those proceedings and are entitled to Judicial Notice thereof. See Watkins v. Holman, 16 Pet 25, 10 L.Ed 873; Carolene Products Co. v. U.S., 323 US 18, 65 S. Ct. 1, 89 L.Ed 15. “The recitals of public acts are evidence of the fact recited; but in private acts they are not evidence except against the parties who produce them.” Branson v. Wirth, 21. L. Ed. 566 (1873).
Adequacy of Service
In support of their argument concerning the adequacy of service, Defendants cited twenty-one cases and four other authorities; see, Defendants’ Memorandum at 27-34. Three of these cases were holdings of the United States Supreme Court, and six were holdings of Kentucky’s highest court, all of which constitute binding precedent in this Court. In response, Plaintiffs have cited no cases of law and no other authorities, nor did they even attempt to distinguish a single one of Defendants’ cases or other authorities. See, Plaintiffs’ Memorandum at 5-6. Instead, Plaintiffs have chosen to rest their argument on the unsupported assertion that “federal procedural rules incorporate the state’s method of service, not the person authorized to effect service.” Plaintiffs’ Memorandum at 6 . Plaintiffs cite no case or other authority so holding. Rather, the Court is asked to simply accept this statement ipse dixit, “because I say so”.
Designation of Defendant
With regard to the Harlan County case, Defendants pointed out that Plaintiffs have impleaded “Harlan County School District” as a party Defendant, and that no such governmental entity is recognized by Kentucky law. See, Defendants’ Memorandum at 5-6. KRS 160.160 (1), which gives local school boards the right to sue and be sued, specifically directs that legal actions must be conducted in the name of the “Board of Education of“ Kentucky”. Therefore, the instant Plaintiffs should have impleaded the “Board of Education of Harlan County, Kentucky”.
However, instead of moving the Court for leave to implead the proper party, Plaintiffs continue to insist that they have sued the correct entity. Plaintiffs assert:
Plaintiffs understand the legal entity comprising the Harlan County schools to be the school district. The school district, in turn, is managed by the school board just as commercial litigants sue, for example, Ford Motor Company, not Ford’s board of directors, the Plaintiffs here have sued the school district, not its board.
Plaintiffs’ Memorandum at 7.
Plaintiffs cite no supporting authority for this novel proposition; this is hardly surprising, since the plain language KRS 160.160 (1) is clearly to the contrary. It is elementary that:
A suit brought in the name of [or against] that which is not a legal entity, that is, a name which is that of neither a natural person, nor a corporation, nor a partnership, nor an individual doing business in a trade name, has been held a mere nullity; and in such a situation, there is no case in court, and consequently nothing to amend.
59 Am Jur.2d Parties € 20 at nn. 27-30 (1987).
This rule is fully applicable to corporations. Kentucky’s highest court has held that a corporate Defendant must be impleaded in its correct corporate name. Pike, Morgan and Co. v. Wathen, 25 Ky. Law Rep. 1264, 78 S.W. 137 (1904). The rule also applies to school districts. “A corporate school organization which is a proper party Plaintiff or Defendant in an action must sue and be sued as such, in its correct corporate name.” 68 Am. Jur. 2d Schools € 17 at n. 25 (1993), citing, Halliday v. Marchington, 184 N.E. 698 (Ohio App.1932); and Marting v. Gross, 162 N.E. 2d 186 (Ohio App. 1959).
Exposure to objectionable material
As Plaintiffs correctly note, Defendants have argued at length that exposure to objectionable materials does not infringe one’s constitutional rights. In support of this assertion, Defendants cited a number of cases in which Christian students were required to study, and to profess their belief in, materials denouncing Christianity; see, Defendants’ Memorandum at 7-11.
In response, Plaintiffs attempt to draw a distinction between exposure to objectionable ideas and the state’s endorsement of those ideas. As with their other arguments, Plaintiffs cite no case so holding, and they cannot do so. Moreover, Plaintiffs contend, and would have this Court hold, that requiring a student to read, and to make an unconscionable declaration that he believes, objectionable matter, is not an endorsement of religion, while simply posting such matter on the schoolroom wall, where the student is free to ignore it, does constitute such an endorsement. This argument stands logic on its head, and collapses of its own weight. The public documents of the official and permanent history of American civil government are facts which may not be censored or suppressed.
Standing
Finally, Plaintiffs have misread the law on standing. As Defendants noted in their prior Memorandum, to have standing Plaintiffs must allege “injury in fact” - a harm suffered that is “concrete” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Steel Co. v. Citizens for a Better Environment, 118 S. Ct. 1003, 1016 (1998). The psychological harm that results from witnessing behavior with which one disagrees is not sufficient to confer standing on a litigant. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 485-86 (1982).
A recent line of cases from the Seventh Circuit shows that, to have standing to challenge the public display of a religious symbol or statement, an individual would have to undertake a “special burden”, or alter his or her normal routine in order to avoid the offensive object.
(1) In American Civil Liberties Union v. City of St. Charles, 794 F. 2d 265 (7th Cir. 1986), the court held that Plaintiffs’ allegations that they were offended by the display of a lighted cross on public property could not confer standing. However, it found that the Plaintiffs had standing because they had altered their behavior to avoid seeing the cross.
(2) Likewise, in Harris v. City of Zion, Lake County, Illinois, 927 F. 2d 1401(7th Cir. 1991), the court held that the Plaintiffs’ efforts to avoid viewing the challenged city seal, supported by evidence, were enough to confer standing. However, the court also stated that the mere fact Plaintiffs are offended by the Defendants’ conduct is not enough to confer standing. Rather, the alleged injury must be “distinct and palpable,” and not “abstract” or “conjectural” or “hypothetical”. 927 F. 2d at 1404, quoting Allen v. Wright, 468 U.S. 737, 751 (1983).
The Harris court further stated that “The injury brought about by a violation of law must affect one’s possessions or bodily integrity or freedom of action and not just one’s opinions, aspirations or ideology”. Id., quoting People Organized for Welfare and Employment Rights v. Thompson, 727 F. 2d 167, 171 (7th Cir. 1984).
(3) Gonzales v. North Tp. of Lake County, Indiana, 4 F. 3d 1412 (7th Cir. 1993), which Plaintiffs cited at page 4 of their Memorandum, also supports this position. As a reading of that case will show, the court held that the Plaintiffs had failed to establish taxpayer standing to challenge the presence of a crucifix in a city park. However, it also stated that the Plaintiffs’ discontinued use of the area near the crucifix was sufficient to establish what the court called “use and enjoyment standing”.
(4) Moreover, in Freedom From Religion Foundation v. Zielke, 845 F. 2d 1463 (7th Cir. 1988), the Plaintiffs challenged a Ten Commandments display located in a city park. The Plaintiffs alleged that they suffered a “rebuke to [their] religious beliefs by virtue of being subjected to a governmental endorsement of unequivocally religious precepts and confusions”. The Seventh Circuit held that the Plaintiffs’ claims were exactly the type of psychological harm that the Supreme Court, in Valley Forge, said did not confer standing on an aggrieved party. 845 F. 2d at 1468. The court stated that, if the Plaintiffs were unwilling to go to Cameron Park because of the presence of the Ten Commandments monument, they would have adequately alleged a distinct and palpable injury because their right to use a public park would have been adversely affected by the presence of a possibly unconstitutional display. 845 F. 3d at 1468 n. 3.
Therefore, contrary to the suggestion of Plaintiffs, the Seventh Circuit does not hold that psychological injuries, without more, are sufficient to confer standing. Applying these rules to the case at bar, the only damage alleged by the Plaintiffs is that they are “offended by the continued display and by having to view this display”. Complaint, paragraph 19. Those offended by America’s permanent political history of our civil government have no legally recognizable complaint in an American court whose system of civil government and laws and justice are based thereon. Although Plaintiffs state that they are “are now suffering, and will continue to suffer, irreparable harm,” the only “harm” alleged is a purely ideological or psychological one. The Plaintiffs do not allege that they have ever altered their usual routes or practices in order to avoid seeing the Ten Commandments display. The Plaintiffs, therefore, have not alleged such a “direct and palpable injury” as would give them standing to bring this suit.
III. PLAINTIFFS MISAPPLY THE LEMON TEST.
At pages 2 and 7-9 of their Memoranda, Plaintiffs argue that the Defendants’ modified display does not satisfy the requirements of Stone v. Graham, 449 U.S. 39 (1980) because it “violates the purpose and effects prongs of the Lemon test, and also vlates the ‘endorsement’ test”. Plaintiffs are mistaken.
In the first place, it is clear that Lemon does not apply to a request to censor or suppress public documents of America’s official and permanent political history. Lemon is not the appropriate test. In 1947 Justice Black adopted Thomas Jefferson’s metaphor for the relationship between church and state and built it into a “high and impregnable wall” of separation. Everson v. Board of Education, 330 U.S. 1 (1947). That metaphor raised more questions than it answered, and has led to the development of no fewer than five tests for determining when government action passes the wall and becomes an act “respecting an establishment of religion”.
This language requires government to stop at a distance from an actual establishment of a state religion with required modes of worship in that it has been construed to forbid government action that even tends toward the establishment of religion. However, it clearly does not require that separate but equal branches of civil government extirpate it’s official and permanent history of American government or to attempt to suppress any official reference to religion which would amount to a hostility towards religion which is also prohibited. Allegheny v. ACLU, 492 U.S. 573, 656 (Kennedy, J., concurring in part and dissenting in part)
In the second place, Plaintiffs have too readily assumed that the Ten Commandments is somehow a purely “religious” symbol. In America where are public laws and civil government are founded on the Ten Commandments it is not anything like a nativity scene or a Latin cross, because it has only an historic American public message about our unique American public institutions. However, it is not a religious message, because it has great historical, political and legal significance in this country. Neither is this case exactly like Stone v. Graham, because of the factual differences between a mandate by the Kentucky General Assembly that every public school classroom display a copy of the Ten Commandments, and the passive acceptance by a school board or fiscal court of a plaque of The Congressional Record which includes the Ten Commandments among other official public political documents displayed on a wall in one of its public buildings.
As the Plaintiffs correctly note, in Establishment Clause analysis dealing with religious symbols and messages, “context is Key”; see, Plaintiffs’ Memorandum at 2. However, this case reflects a display of official political documents, which cannot, in any way, be construed as “religious” documents because of their Christian content. America’s official and permanent political history cannot be altered or suppressed under a guise of conclusory assertions in an attempt to transform official documents of American “political” history to “religion” or “church” documents. Since none of the ACLU’s reported cases has arisen on a set of facts which is at all analogous to those of the instant case, this Court will be required to accept the ACLU’s revolutionary political idea of using the First Amendment to censor and suppress our founding documents. This would radically extend the Supreme Court’s Establishment Clause jurisprudence to endorse and uphold political revolution through the courts. Because an argument has been made by the ACLU for applying any one of the five Lemons’ tests to the unique facts of this case, the Court need not consider any or all five “Lemon” tests to determine that under none of those tests could political documents be transformed into religious documents to produce a result totally inconsistent with the intent and purpose of the First Amendment. These five (5) tests apply only to a consideration of religious customs and traditions in public life and do not apply to any revolutionary attempt to suppress public documents of official and permanent political history of American government. However, even if any such tests were considered Defendant’s Motion to Dismiss would have to be granted. See Books , et al, v. City of Elkhart, Indiana, No. 3:98cv0230 AS (D.C. of N.D. of Indiana, December 22, 1999, attached hereto).
Without authority, the ACLU and Plaintiffs urge this Court, by removing the official government documents reflecting America’s permanent political history, to engage in an unconstitutional assault on America’s political foundations which is nothing less than a revolutionary act. The Congressional Record and other official public and political documents including the political reference to the Ten Commandments as displayed, does not “prefer those who believe in no religion over those who do believe”.
There is nothing in Lemon v. Kurtzman or its progeny which requires the Court to do so. As clearly and irrefutably shown above, the Plaintiffs’ four-paragraph summation grossly oversimplifies the law on this point, illustrating the need for oral argument herein. When the labyrinth of decisional law on the Religion Clauses of the First Amendment is examined in its totality, the Plaintiffs fall far short of establishing that they are entitled to an injunction. This Court is not compelled to order the Defendants to take down any documents of America’s official and permanent political history including appropriate references therein to “Almighty God,” “The Lord,” the “Bible” or The Ten Commandments.
As shown above, Plaintiffs have absolutely failed to controvert the Defendants’ arguments or to distinguish their cases and other authorities, and have misapplied the holding of Lemon v. Kurtsman. The Court, therefore, must disregard the Plaintiffs’ Memorandum and grant the Defendants’ Motion to Dismiss. Defendants pray for an Order of the Court so holding.
Respectfully submitted,
Colonel Ronald D. Ray
Counselors at Law
3317 Hall’s Hill Road
Crestwood, Kentucky 40014
(502) 241-5552
(502) 241-1552 (facsimile)
and
Theodore H. Amshoff, Jr.
AMSHOFF & AMSHOFF, P.S.C.
Ninth Floore
200 W. Broadway
P.O. Box 2848
Louisville, Kentucky 40201-2848
(502) 540-0060
(502) 540-0066 (facsimile)
Counsel for Defendants McCreary County, Kentucky, and Jimmie Greene, McCreary County Judge-Executive
I hereby certify that a copy of the foregoing, together with a copy of the Memorandum in Support of Defendants’ Motion to Dismiss, was served by mail, on this _____ of March, 2000, to counsel for the Plaintiffs at the following addresses.
Mr. David Friedman, Esq.
General Counsel
American Civil Liberties Union of Kentucky
425 W. Muhammad Ali Boulevard
Suite 230
Louisville, Kentucky 40202
Ms. Kathleen Flynn, Esq.
Everett C. Hoffman, Esq.
SEGAL, SALES, STEWART, CUTLER & TILLMAN
2100 Waterfront Plaza
325 W. Main street
Louisville, Kentucky 40202
Ms. C. Laurie Griffith, Esq.
GRIFFITH LAW OFFICE, PSC
108 Browns Lane
Louisville, Kentucky 40207
____________________________________
Theodore H. Amshoff, Jr.
Counsel for Defendants
UNITED STATES DISTRICT COURT
SARAH DOE AND THOMAS DOE, on behalf
Of themselves and their minor child, Jan Doe,
)
Plaintiffs )
)
v. ) Civil Action No. 99-508
)
HARLAN COUNTY SCHOOL DISTRICT; and )
DON MUSSELMAN, in his official capacity )
as Superintendent of the Harlan County )
School District )
)
Defendants )
__________________________________________)
MOTION FOR ORAL ARGUMENT
Comes now the Defendants, Harlan County School District, Harlan, Kentucky and Don Musselman, Superintendent of the Harlan County School District, by counsel, and move the Court to grant an oral argument on their Motion to Dismiss, filed herein. As reason therefor, Defendants state that the said Motion involves a number of complex legal questions. Defendants believe oral argument would assist the Court in understanding and adjudicating this Motion. Further arguments of fact and law in support of the said Motion are set out in the Defendants Supporting Memorandum of Law, filed herewith.
Wherefore, Defendants pray the Court to enter the attached Order.
Respectfully submitted,
Counselors at Law
3317 Hall’s Hill Road
Crestwood, Kentucky 40014
(502) 241-5552
(502) 241-1552 (facsimile)
and
Theodore H. Amshoff, Jr.
AMSHOFF & AMSHOFF, P.S.C.
Ninth Floore
200 W. Broadway
P.O. Box 2848
Louisville, Kentucky 40201-2848
(502) 540-0060
(502) 540-0066 (facsimile)
Counsel for Defendants McCreary County, Kentucky, and Jimmie Greene, McCreary County Judge-Executive
I hereby certify that a copy of the foregoing, together with a copy of the Motion for Oral Argument, was served by mail, on this _____ of March, 2000, to counsel for the Plaintiffs at the following addresses.
Mr. David Friedman, Esq.
General Counsel
American Civil Liberties Union of Kentucky
425 W. Muhammad Ali Boulevard
Suite 230
Louisville, Kentucky 40202
Ms. Kathleen Flynn, Esq.
Everett C. Hoffman, Esq.
SEGAL, SALES, STEWART, CUTLER & TILLMAN
2100 Waterfront Plaza
325 W. Main street
Louisville, Kentucky 40202
Ms. C. Laurie Griffith, Esq.
GRIFFITH LAW OFFICE, PSC
108 Browns Lane
Louisville, Kentucky 40207
____________________________________
Theodore H. Amshoff, Jr.
Counsel for Defendants
The Harlan County Defendants also moved to require the Doe Plaintiffs who filed that action, to disclose their true identities. The Harlan County Plaintiffs filed a separate Response to those motions, and the Harlan County Defendants filed a separate Reply to that Response. Accordingly, those issues are not addressed in this Memorandum
In fact, case law points to a contrary result. In Talbot v. Seeman, 5 U.S. 1, 38 (1801), Chief Justice Marshall stated that proclamations by the executive branch are admissible in U.S. courts as evidence, without being further proved. In Leland v. Wilkinson, 33 U.S. 317, 322 (1832), Chief Justice Marshall stated that: “The public laws of a State may without question be read in this court.”
In Watkins v. the Lessee of Holman, 41 U.S. 25, 55-56 (1842), Justice McLean, after observing that the Journals of the House of Lords and the House of Commons “have always been admitted as evidence of their proceedings” in English courts, then continued:
“In this country, in all public matters, the journals of Congress are evidence . . . The very highest authenticity attaches to these State papers published under the sanction of Congress.”
See also, Branson v. Wirth, 84 U.S. 32, 44 (1873) (“the recitals of public acts are regarded as evidence of the facts recited”)
While these holdings may, arguably, be distinguishable from the instant case, it seems obvious that if government documents are admissible as evidence, displaying excerpts from them in a courthouse or other public building, does not offend the Constitution.
The only mention of this key case is a passing reference in the section of Plaintiffs’ Memorandum dealing with their Motion for Preliminary Injunction; see, Plaintiffs’ Memorandum at 8-9.
The fact that “this is a Christian nation” is further shown by Article VII of the United States Constitution, which declares that instrument to have been framed “by the unanimous consent of the States present, in the year of our Lord, 1787, and of the Independence of the United States of America, the twelfth”. As one commentator has noted, the word “Lord” obviously refers to Jesus Christ, and the word “our” preceding it, refers back to the commencing words of the Constitution, “We the people of the United States.” Daniel L. Driesbach, Religion and Politics in the Early Republic (1996) at 63, quoting Jasper Adams, The Relation of Christianity to Civil Government in the United States (1833).
Dr. Adams concludes: “The phrase, then, our Lord, making a part of the dating of the Constitution when compared with the commencing clause, contains a distinct recognition of the authority of Christ, and of course, of his religion by the people of the United States.” Id. He also points out that since the framers used two parallel phrases to date the document, “Any argument which should be supposed to prove, that the authority of Christianity is not recognized by the people of the United States in the first [phrase], would equally prove that the Independence of the United States is not recognized by them in the second [phrase]”. Id. (italics in original)
Despite the passage of 167 years, Adams’ conclusion remains sound, and irrefutable.
The Indiana Civil Liberties Union recently accepted such documents as a legitimate historical display, and withdrew two lawsuits it had filed in that state. Christopher Esslinger v. Grant County, Indiana, No. 1: 97-CV-425, U.S. District Court for the Northern District of Indiana; see, Exhibit 1; and Scott Deverall v. Hendricks County, Indiana, No. IP 97-1817 CM/S, U.S. District Court for the Southern District of Indiana, see, Exhibit 2. Another federal court granted summary judgment against the Plaintiffs in a similar case, finding that the Ten Commandments were part of a larger display of “objects of cultural and historical significance.” Books v. City of Elkhart, No. 3:98cv0230 AS, U. S. District Court for the Northern District of Indiana, dism’d, December 22, 1999, see Exhibit 3.
Plaintiffs seek to escape the operation of this rule by urging that “the Plaintiffs have sued Don Musselman, the school superintendent, in his official capacity. Suing government officials in their official capacity is the same thing as suing the government for which they work. E.g., Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n. 10 (1989)”. Plaintiffs’ Memorandum at 7. This argument affords Plaintiffs no support, since they have impleaded Mr. Musselman as “Superintendent of the Harlan County School District,” a non-existent entity. Furthermore, Plaintiffs have misread the authority on which they rely. Will v. Michigan states, at the passage cited, that an official-capacity suit against a state officer, which seeks to recover money damages is “a suit against the State itself”. 491 U.S. at 71. However, “official capacity actions for [injunctive] relief are not treated as actions against the State”. 491 U.S. at 71 n. 10. Furthermore, this Court has recently held, in a case which arose in Harlan County, Kentucky, that these rules do not apply to local school boards, since a local school board is not “an arm of the state”. Tolliver v. Harlan Co. Bd. of Educ., 887 F. Supp. 144 (E. D. Ky. 1995).
Ironically, while the ACLU seeks to eliminate references to Almighty God in public life, it also seeks to make all forms of perverse sexual expression acceptable public conduct especially in the school building. William A. Donohue,