Am. Civil Liberties Union of Ohio Found. Inc. v. Deweese

633 F.3d 424

AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUNDATION, INC., Plaintiff–Appellee,

v.James DEWEESE, Defendant–Appellant.

No. 09–4256.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 1, 2010.Decided and Filed: Feb. 2, 2011.Rehearing and Rehearing En Banc Denied March 16, 2011.

ARGUED: Francis J. Manion, American Center for Law and Justice, New Hope, Kentucky, for Appellant. Michael T. Honohan, Law Office, Rocky River, Ohio, for Appellee. ON BRIEF: Francis J. Manion, Geoffrey Richard Surtees, American Center for Law and Justice, New Hope, Kentucky, Edward Lawrence White, American Center for Law and Justice, Ann Arbor, Michigan, for Appellant. Michael T. Honohan, Law Office, Rocky River, Ohio, Carrie L. Davis, American Civil Liberties Union of Ohio, Cleveland, Ohio, for Appellee. Benjamin D. DuPre, Foundation for Moral Law, Montgomery, Alabama, for Amicus Curiae; Ayesha N. Khan and Alex J. Luchenitser, Americans United for Separation of Church and State, Washington, DC, for Amicus Curiae.Before: SILER, CLAY, and GIBBONS, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Defendant James DeWeese appeals from a judgment entered on October 6, 2009 by the United States District Court for the Northern District of Ohio. The district court granted Plaintiff American Civil Liberties Union of Ohio Foundation, Inc.'s summary judgment motion for declaratory and injunctive relief, holding that the poster Defendant hung in his Richland County, Ohio courtroom violated the Establishment Clauses of the United States and Ohio Constitutions. For the reasons stated below we AFFIRM the district court's judgment.

STATEMENT OF FACTS

In July of 2000, Defendant James DeWeese, a duly elected judge in the General Division of the Common Pleas Court in Richland County, Ohio, created and hung two posters in his courtroom, one of the Bill of Rights and one of the Ten Commandments. The American Civil Liberties Union (“ACLU”) brought an action against Judge DeWeese in the United States District Court for the Northern District of Ohio seeking a declaration that the Ten Commandments poster violated the Establishment Clause, and requesting an injunction preventing Judge DeWeese from continuing to hang the poster in his courtroom. Both the district court and the United States Court of Appeals for the Sixth Circuit ruled in favor of the ACLU, declaring the hanging of the poster in the courtroom unconstitutional and enjoining Judge DeWeese from continuing to display it in his courtroom. ACLU of Ohio v. Ashbrook, 211 F.Supp.2d 873 (N.D.Ohio 2002); ACLU of Ohio Found., Inc. v. Ashbrook, 375 F.3d 484 (6th Cir.2004). Judge DeWeese thereafter removed the Ten Commandments poster from his courtroom.

In June 2006, Defendant created a second poster (“the poster”) which he hung in his courtroom containing the Ten Commandments entitled “Philosophies of Law in Conflict.” Immediately under the title on the poster are three numbered comments:

1. There is a conflict of legal and moral philosophies raging in the United States. That conflict is between moral relativism and moral absolutism. We are moving towards moral relativism.

2. All law is legislated morality. The only question is whose morality. Because morality is based on faith, there is no such thing as religious neutrality in law or morality.

3. Ultimately, there are only two views: Either God is the final authority, and we acknowledge His unchanging standards of behavior. Or man is the final authority, and standards of behavior change at the whim of individuals or societies. Here are examples.

(R. 17, Def. Opp'n to Mot. for Summ. J., Ex. A–3.)

Below these three comments are two columns covering the majority of the poster, one entitled “Moral Absolutes: The Ten Commandments,” and the other entitled “Moral Relatives: Humanist Precepts.” Id. Under the “Moral Absolutes” column are listed the following:

I am the LORD your God ...

I. You shall have no other gods before Me.

II. You shall not make for yourself an idol.

III. You shall not take the name of the LORD your God in vain.

IV. Remember the Sabbath day, to keep it holy.

V. Honor your father and your mother.

VI. You shall not murder.

VII. You shall not commit adultery.

VIII. You shall not steal.

IX. You shall not bear false witness against your neighbor.

X. You shall not covet anything that is your neighbor's.

Id. Under the second, “Moral Relatives,” column, set up in opposition to the first, are listed seven statements:

I. The universe is self-existent and not created. Man is a product of cosmic accidents, and there is nothing higher than man. (Humanist Manifesto I)

II. Ethics depend on the person and the situation. Ethics need no religious or ideological justification. (Humanist Manifesto II)

III. There is no absolute truth. What's true for you may not be true for me. (Humanist John Dewey)

IV. The meaning of law evolves. “We are under a Constitution, but the Constitution is what the judges say it is.” (U.S. Sup. Ct. Justice Chas. Hughes)

V. “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life.” (Planned Parenthood v. Casey)

IV. Personal autonomy is a higher good than responsibility to your neighbor or obedience to fixed moral duties. (Humanist Manifesto II)

VII. Quality-of-life decisions justify assisting the death of a fetus, defective infant, profoundly disabled or terminally ill person. (Princeton U. Prof. Peter Singer)

Id.

At the bottom of the poster, below the two columns, is a fourth comment by Defendant:

4. The cases passing through this courtroom demonstrate we are paying a high cost in increased crime and other social ills for moving from moral absolutism to moral relativism since the mid 20th century. Our Founders saw the necessity of moral absolutes. President John Adams said, “We have no government armed with power capable of contending with human passions unbridled by morality and religion. Our Constitution was made for a moral and religious people. It is wholly inadequate for the government of any other.” The Declaration of Independence acknowledges God as Creator, Lawgiver, “Supreme Judge of the World,” and the One who providentially superintends the affairs of men. Ohio's Constitution acknowledges Almighty God as the source of our freedom. I join the Founders in personally acknowledging the importance of Almighty God's fixed moral standards for restoring the moral fabric of this nation. Judge James DeWeese.

Id. Finally, in the lower right hand corner of the frame, readers are invited to obtain from the court receptionist a pamphlet further explaining Defendant's philosophy. Id.

In 2008 Plaintiff filed a motion to show cause against Defendant, arguing that Defendant violated the district court's order enjoining the first poster by displaying this poster. The district court, however, found that as the two posters were not identical, Defendant was not in contempt of the court's order to remove the previous poster. ACLU v. DeWeese, No. 08–2372, slip op. at 2 (N.D. Ohio Oct 8, 2009) (memorandum and order).

Plaintiff then filed a new suit against Defendant in the United States District Court for the Northern District of Ohio. Count One of Plaintiff's new suit was a claim for declaratory relief contending that Defendant's display of the poster violated the First and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983. Count Two of Plaintiff's suit requested an injunction against Defendant's continued display of the poster. Count Three requested a declaration that Defendant's display of the poster violated the Ohio Constitution. Id. at 3.

The parties cross-moved for summary judgment, and the district court granted Plaintiff's summary judgment motion, and denied Defendant's motion. The district court found that Defendant's display of the poster in his courtroom violated the First and Fourteenth Amendments of the United States Constitution as well as the Ohio Constitution. The district court enjoined Defendant from continuing to display the poster in his courtroom. Id. at 23.

Defendant appealed the district court's decision.

DISCUSSION

I. Standard of Review

We review the district court's award of summary judgment de novo. Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir.2010). The moving party is entitled to summary judgment “if the pleadings, the discovery and the disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a material issue of fact. “[A] party seeking summary judgment always bears the initial responsibility of informing the [court] of the basis for its motion, and identifying those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

II. Standing

A. Analysis

To sue in federal court a plaintiff must demonstrate that he or she has standing under Article III of the Constitution. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “Standing to sue requires an individual to demonstrate (1) actual or threatened injury which is (2) fairly traceable to the challenged action and (3) a substantial likelihood the relief requested will redress or prevent the plaintiff's injury.” ACLU v. Ashbrook, 375 F.3d 484, 489 (6th Cir.2004). See also Steel Co., 523 U.S. at 103, 118 S.Ct. 1003. Moreover, the ACLU, as a “voluntary membership organization has standing to sue on behalf of its members when (a) its members otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the...