Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
Closed Expands Expression
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The U.S. Court of Appeals for the 11th Circuit upheld an Alabama Federal District Court’s ruling that a large granite display of the Ten Commandments in a public Alabama courthouse violated the Establishment Clause of the First Amendment. The Federal District Court subsequently issued an injunction for mandatory removal of the Ten Commandments display. The Court reasoned that the display (1) was not justified by the historical practice standard set out by the U.S. Supreme Court in Marsh v. Chambers, and (2) failed to pass the Establishment Clause violation test developed by the Supreme Court in Lemon v. Kurtzman, namely that the challenged practice has a valid secular purpose, does not have the effect of advancing or inhibiting religion, and does not foster excessive government entanglement with religion. In these circumstances the court ruled that the display violated the Establishment Clause of the First Amendment.
Shortly after his appointment as Chief Justice of the Alabama Supreme Court, Judge Roy S. Moore had a two-and-a-half ton stone monument of the Ten Commandments placed in the rotunda of the Alabama Supreme Court Building. Before his appointment to the Alabama Supreme Court, Judge Moore had been a lower court judge, famous for his display of the Ten Commandments in his courtroom, and when questioned at trial about his motives for installing the monument, Judge Moore responded that the monument was intended to procure “the favor and guidance of Almighty God.”
The three Plaintiff lawyers entered the Judicial Building regularly as part of their professional work and had to pass the monument which made them feel like outsiders and which they considered offensive because they didn’t share the Chief Justice’s religious views. Two of the Plaintiffs altered their behavior as a consequence. Accordingly, the Plaintiffs filed a civil suit in the Alabama Federal District Court against Judge Moore alleging that the presence of the Ten Commandments in the courthouse violated the Establishment Clause of the First Amendment.
On November 18 2002, the District Court found that the monument violated the Establishment Clause and issued an injunction requiring its removal. The injunction was then stayed pending appeal to the 11th Circuit Court of Appeal.
Chief Judge Edward Earl Carnes wrote the majority opinion for the 11th Circuit. Judge Carnes rejected Judge Moore’s appeal, finding that the placement of the Ten Commandments in the courthouse failed all three prongs of the ‘entanglement’ test set out in Lemon v. Kurtzman and therefore, violated the Establishment Clause of the First Amendment as applied to the states through the Due Process Clause of the Fourteenth Amendment. The Lemon test requires that lawful government action (1) must have a secular purpose, (2) must neither enhance nor inhibit religion, and (3) must not foster excessive government entanglement with religion.
Applying the first prong of the Lemon test, and citing Judge Moore’s numerous statements indicating his belief that the Christian religion provided the moral foundation of U.S. law, and that Christian ‘law’ transcended both church and State, Judge Carnes found that Judge Moore did not have a secular purpose when he placed the Ten Commandments in the rotunda of the courthouse.
Applying the second prong of the Lemon test, and citing the size, placement, and centrality of the religious message represented by the monument and the fact that many employees and litigants found the monument an enticing place to pray, Judge Carnes found that the monument had the effect of ‘enhancing’ the Judeo-Christian religion.
Finally, turning to the third prong of the Lemon test, Judge Carnes found that a monument so prevalent without any other religious or secular models of equal prevalence would have the effect of communicating to litigants that the State favored the Christian religion, which amounted to an excessive entanglement of the government with religion.
Judge Carnes declined to apply the precedent set out in Marsh v. Chambers, which found that Congressional prayers did not violate the Establishment Clause due to their consistent historical use, because there was no consistent historical practice in the U.S. of placing massive monuments of the Ten Commandments in courthouses.
Accordingly, for the reasons above, the 11th Circuit Court of Appeals upheld the Alabama District Court’s finding that Judge Moore’s monument of the Ten Commandments displayed in the Alabama Supreme Court building violated the Establishment Clause of the First Amendment. The District Court then issued an injunction requiring the immediate removal of the monument.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by reinforcing the Establishment Clause which ensures that there is no prohibition on the free exercise of religion. The decision also expands expression by protecting the neutrality of public spaces when it comes to the expression of religious belief.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision is binding upon the 11th Circuit Court and all Federal District Courts within the 11th Circuit. It is a persuasive precedent for all other Appellate Circuit Courts in the U.S.
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