Oral Argument Before Colorado Supreme Court, November 15, 1994
Delivered By Robert Tiernan
May it please the court:
First, I would like to refer the court to plaintiffs’ exhibit 1 attached to complaint. This is a color photo of the monument at issue.
Should the court at any time have doubts about the clearly religious nature of the monument, it need only refer to this photograph to dispel those doubts.
This case began as the result of a written request to Governor Romer to remove a monument containing the Ten Commandments from Lincoln Park.
As this court knows, Lincoln Park is the block immediately north of this courthouse.
The monument at issue sits beside a walkway on the northwest quadrant of the park . . .
Not only is the Ten Commandments isolated as it sits in the park. There is no other monument, artifact, or display pertaining to the Ten Commandments, a history of religion, our system of laws, or anything remotely having to do with the Ten Commandments.
The other displays are essentially war memorials and a liberty bell all pertaining to times in our history when there was armed conflict.
By letter dated March 2, 1989, Governor Romer replied to the request to remove the monument. In that response, he refused to order the monument removed and stated:
“The tablet and the inscription are representative of the views of a large number of Colorado citizens.”
In other words, Governor Romer defended placement of the monument not on the fact that it was one of a number of monuments in the park but upon the premise that the message conveyed by the monument, that is to say the Ten Commandments, represents the beliefs of a large number of Colorado citizens.
No doubt this is true. But it is for this very reason that the monument should be removed.
Following Governor Romer’s response, this litigation was initiated.
The complaint was filed with the Denver District Court on March 16, 1989.
After discovery, a motion for summary judgment was filed by the state and was granted by the trial court.
That order was appealed. The Court of Appeals reversed the Order and remanded the case to the District Court for trial.
The case was tried to the court without a jury on December 9, 10, and 11, 1991. Witnesses for the parties testified on December 9 and 10. Oral argument was held on the morning of December 11 and immediately thereafter the trial court delivered its decision from the bench. No briefs or written arguments were submitted.
In reviewing the trial court’s decision, we would like to direct this court’s attention to the fact that no reference was made to the U.S. Supreme Court decisions in Stone v. Graham, Lynch v. Donnelly, or Allegheny County v. Greater Pittsburgh ACLU which we submit are the controlling cases in this area. The only court decisions referred to the trial court were Lemon v. Kurtzman and Conrad II. These cases are germane but are not as fact specific to the issue of the Ten Commandments monument sitting on public property as Stone, Lynch, or Allegheny.
It should also be noted that the trial court’s opinion devoted about half a page to legal analysis of the first two criteria of the Lemon test and did not even deal with the question of endorsement and the reasonable observer test which, under Lynch and especially Allegheny, are at the heart of this case.
Again, the decision of the trial court was appealed. On June 17, 1993, the Colorado Court of Appeals in a well-reasoned, thorough opinion reversed the trial court and ordered the case remanded. The state petitioned and certiorari was granted by this court.
The four issues designated for appeal are:
1. Whether the Court of Appeals’ opinion engaged in impermissible fact finding.
2. Whether the Court of Appeals improperly relied on school setting cases.
3. Whether the Court of Appeals’ opinion contravenes precedent by concluding that it is axiomatic that the religious nature of the monument in a state park makes it unconstitutional.
4. Whether the Court of Appeals’ opinion misapplied Stone, Lynch, and Allegheny.
Taking the issues in order, first, the Court of Appeals emphatically did not engage in impermissible fact finding. What it did was to take the facts and apply the applicable legal principles–something the trial court failed to do.
Nevertheless, the Court of Appeals and this court has a right, indeed, an obligation, to review this case de novo. That principle has been clearly established by the U.S. Supreme Court in First Amendment cases and nothing that the state presented in its reply brief contradicts this principle.
All the state does is argue that the decisions we rely on don’t really mean what they say. Instead, the state argues that de novo review is limited to First Amendment freedom of the press cases. Well, that is not what the Supreme Court said in Bose and the other cases in point–if the court had wished to restrict de novo review to freedom of the press cases, it would have said so–it didn’t.
There is an important reason why de novo review is authorized, and indeed, necessary here. This is a case which goes far beyond the interest of the parties. My clients are really nothing more than a vehicle by which constitutional review is initiated. The decision of this court will establish public policy for all citizens of Colorado and so it transcends the limited interests of the parties to this litigation.
The state’s second contention, i.e., that the Court of Appeals improperly relied on school setting cases, is equally without merit. The Court of Appeals properly relied on Stone v. Graham which is a school setting case. Stone v. Graham stands for the proposition that the Ten Commandments is a very sacred text and that, shown in the absence of a display emphasizing its secular meaning, it conveys a religious message and only a religious message. This holds true whether the Ten Commandments are displayed in a school setting or in any other kind of setting. The court in Stone rejected the argument that a secular purpose or a secular effect could be implied from viewing the Ten Commandments. Contrary to the state’s argument, the court in Stone said that the Ten Commandments could pass muster in a school setting giving as an example in a teaching of religious history.
With respect to the state’s third contention, the Court of Appeals did not conclude that it is axiomatic that the religious nature of the monument at issue displayed in a state park makes it unconstitutional. To the contrary, the court remanded the case to the trial court to give the state an opportunity to rehabilitate the display. Nevertheless, we want to point out to this court that we believe there is no way the monument can be made constitutional in Lincoln Park unless the character of the park, itself, is drastically changed. That is why we see no reason to remand the case to the trial court. The monument should be removed and either placed on private property or put, for example, in a museum as part of an historic or similar display.
Finally, the Court of Appeals did not misapply the holdings in Stone v. Graham, Allegheny County, or Lynch. In addition to Lemon v. Kurtzman, these three decisions are, in fact, most directly on point in this case. And, as I mentioned earlier, not one of these three decisions was even mentioned by the trial court. This was fatal because the analysis required in this case was established in these three cases, most particularly Allegheny County.
In its decision, the trial court acknowledges that the monument conveys a religious message. Indeed, virtually all of the witnesses did. In spite of this, however, the trial court held that the monument has a secular purpose and it, therefore, passed the Lemon test. This was wrong for two reasons. First, the monument does not have a secular purpose. Second, it was improper for the court to read a secular purpose into the monument when none is apparent.
The record in this case shows as follows:
The monument was placed in Lincoln Park in 1956. Little more is known about its history except it was donated by the Fraternal Order of Eagles.
Contrary to the finding of the trial court, the Fraternal Order of Eagles does support religion. You must profess a belief in God as a condition of membership eligibility.
The monument was placed at the suggestion of a now retired juvenile court judge in Minnesota for the purpose of impressing especially young people with the message conveyed by the Ten Commandments. This is raw proselytization of what the Stone court held was undeniably a sacred text. Yet, the trial court held that the secular purpose is clear from the judge’s affidavit. This was sheer nonsense.
The monument sits in Lincoln Park as a permanent fixture. It does stand alone, isolated from the other monuments. However, even if one viewed the entire park as an integrated display, none of the other monuments or memorials has anything to do with the Ten Commandments, or history of laws, or anything remotely pertaining to the Ten Commandments. It was a non sequitur for the trial court to say that its secular purpose is clear from a view overall of the monolith and view overall of its setting in the capitol grounds. . . .
The decision in Allegheny says this:
1. The government is prohibited from taking or appearing to take any position on religion. Absolutely no government endorsement of religion will be tolerated. Allegheny, 495.
2. The question of endorsement is to be decided by asking what viewers may fairly understand to be the purpose of the display. Allegheny, 496.
3. To make that determination, one must look at the object in issue and the context in which it is presented. Thus, a manger scene, while religious, conveys a secular message of the holiday season if it is placed in a setting emphasizing the secular aspect of Christmas. On the other hand, if presented alone or in a context unrelated to any secular aspect, it sends a message of Christianity and violates the Establishment Clause. The test is what a reasonable observer would actually conclude from viewing the display, not as the trial court did, by pointing out secular aspects of the Ten Commandments which are not apparent from viewing the monument or the context in which it is presented such as the expression of intent in the judge’s affidavit.
Applying these principles to this case, an exercise the trial court failed utterly to do, the Court of Appeals concluded that the Ten Commandments monument sends a message of endorsement of religion. That analysis was correct and it was necessary. It should be affirmed by this court.
Let me conclude–offer a quote from Harvey v. Cobb County, Georgia, where the U.S. District Court for the Northern District of Georgia held a display of the Ten Commandments in the hall of the county courthouse to be unconstitutional:
“To those who have asked the Court by phone calls and letters to save the Ten Commandments the Court points out that the Ten Commandments are not in peril. They may be displayed in every church, synagogue, temple, mosque, home, and storefront. They may be displayed on lawns and in corporate board rooms. Where this precious gift cannot, and should not, be displayed as a religious text is on government property.”
Your honors, it is not our intent to vilify the Ten Commandments. It is only our intent to say that they have no place displayed on public property as they are in this case. Next door to this court is the Colorado History Museum. The Ten Commandments could be displayed there as part of Colorado history–a history which would point out that they were removed from Lincoln Park for the most important of reasons–that reason being to respect and give meaning to what we believe is the most precious document of humankind–the Bill of Rights.
Thank you.
Below is a summary of some of the questions posed to attorney Robert Tiernan by members of the Colorado Supreme Court.
Q: You mean to say that you don’t believe the Ten Commandments are based on historical fact?
A: No, we do not believe that God came down from on high and gave Moses a tablet of divine rules. We concede, however, that the myth of the Ten Commandments is a fact.
Q: Don’t you believe in the Bible?
A: No, we don’t believe that there is a Bible which contains the word of God or which was inspired by God. There is a book known as the Bible which was written centuries ago but we do not believe it contains the word of God if, in fact, there is a God.
Q: What was the emergency that caused your clients to bring this lawsuit?
A: There was no emergency; our people just got tired of seeing the religious monument sitting in a public park.
Q: What about “In God We Trust”?
A: We feel that is unconstitutional and have filed a suit in the Colorado Federal District Court asking that it be declared so. A survey recently conducted by an independent research group showed that over 70% of the population believes “In God We Trust” as our national motto and its inscription on coin and currency constitutes government endorsement of religion in violation of the Constitution.
Q: What about the reference to God in the Pledge of Allegiance?
A: We think that, too, is unconstitutional because it constitutes government endorsement of religion.
Q: What about the fact that the United States Supreme Court opens each session with “God Bless this Honorable Court”?
A: That is based upon an historical practice that predated the First Amendment to the U.S. Constitution. The court has created a special exception for such practices.
Q: Why can’t we say the Ten Commandments monument is historical–it’s been in Lincoln Park since 1956?
A: If one accepted that argument, any constitutional violation would be cured simply by its having been practiced for a long enough period of time.
Q: Why isn’t the Ten Commandments like the creche?
A: Because creches have been held to be constitutional but only if they are part of a holiday display emphasizing the secular aspects of Christmas. The Ten Commandments monument in this case is not part of a display emphasizing anything secular about the Ten Commandments.
Q: Could the Ten Commandments monument be constitutionally placed anywhere on public property?
A: Yes, it could be placed in a museum as part of a display of the history of religion. It couldn’t be part of a patriotic display because we strongly disagree that the Ten Commandments had anything to do with our system of government or laws.
Q: Why couldn’t we call Lincoln Park a museum?
A: Because it isn’t a museum.
Robert Tiernan, a Foundation member, is representing the Foundation and its Denver chapter in several state/church challenges.
