Summary
holding that Ten Commandments monument on Colorado State Capitol Complex was constitutional
Summary of this case from Books v. City of Elkhart, IndianaOpinion
No. 93SC554
June 12, 1995, Rehearing Denied June 30, 1995.
Certiorari to the Colorado Court of Appeals
JUDGMENT REVERSED
Gale A. Norton, Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General Dianne E. Eret, Assistant Attorney General, General Legal Services Section Denver, Colorado, Attorneys for Petitioners.
Robert R. Tiernan, Denver, Colorado, Attorney for Respondents.
Coghill Goodspeed, P.C., John P. Baker, Susan D. Brienza, Denver, Colorado, Attorneys for Amicus Curiae American Civil Liberties Union.
In this case we must determine whether the content and context of a monument, donated to the State for a secular purpose but containing a message of both religious and secular value, displayed among other monuments and tributes on the grounds of the State Capitol, violate the constitutional provisions prohibiting the establishment of or any preference to religion. We conclude that under the facts of this case they do not.
I
The Freedom From Religion Foundation, Inc., a Wisconsin non-profit corporation, the Colorado Chapter of The Freedom From Religion Foundation, Inc., and several individual citizens (collectively referred to as "respondents"), plaintiffs below, sought removal of a monument of the Ten Commandments located on state property. The trial court found that the monument did not violate the applicable constitutional provisions and the court of appeals reversed. Freedom From Religion Foundation, Inc. v. State of Colorado, 872 P.2d 1256 (Colo.App. 1993). The State of Colorado, Roy Romer, Governor of Colorado, the Colorado Department of Administration and the Department's executive director (collectively referred to as "State" or "petitioners"), sought review of the court of appeals' judgment, which held that the monument "conveys an essential religious message that would appear to the reasonable observer to be endorsed and approved by the state because of its contents and its location on the property of the state. . . ." Id. at 1265. As previously directed by the court of appeals, the trial court applied the legal standard we set forth in Conrad v. City and County of Denver, 656 P.2d 662, 672 (Colo. 1983) (Conrad I), and ruled the monument does not offend the Establishment or Preference Clauses. On review we now apply that standard as enlightened by subsequent Supreme Court decisions, and we accordingly reverse.
The two provisions at issue are the Establishment Clause, U.S. Const. amend. I, which provides that "Congress shall make no law respecting the establishment of religion," and our own Preference Clause, Colo. Const. art II, § 4, which prohibits "preference . . . to any religious denomination or mode of worship."
We granted certiorari in order to decide whether:
1. The court of appeals' opinion engaged in impermissible appellate fact-finding, for instance, in determining the context of the monument [in a State park], contrary to the explicit finding of the trial court.
2. The court of appeals' opinion improperly relied upon school setting cases.
3. 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. The court of appeals' opinion misapplied the holdings in Stone v. Graham, 449 U.S. 39 (1980); Allegheny County v. American Civil Liberties Union, 492 U.S. 573 (1989); and Lynch v. Donnelly, 465 U.S. 668 (1984).
II
Although the evidentiary facts presented to the trial court are largely undisputed, they are essential to a complete understanding of this case. Therefore, we reiterate in detail the evidence in the record and the facts derived at trial.
A
In the city of Denver, Colorado, there are adjoining parcels of tree-lined property owned by the State of Colorado and the City and County of Denver. At the east end of the property sits the State Capitol Building and a square block of park. Although a portion of the grounds around the Capitol includes an access street and area for parking, it is landscaped with lawn and trees.
Directly west of the State Capitol Building, across Lincoln Street, is a one-square-block park, owned by the State, known as "Lincoln Park." Lincoln Park, just south of downtown Denver, is bounded by four highly traveled streets: Colfax Avenue on the north, East Fourteenth Avenue on the south, Lincoln Street on the east, and Broadway Street on the west. Lincoln Park is landscaped with lawn and a number of trees.
The State Capitol grounds and Lincoln Park make up a three-block area called the "Capitol Complex Grounds." Within the Capitol Complex Grounds are several monuments. On the east side of the Capitol there is a large statue of a Native American and a buffalo which was placed on the grounds in the early 1900s. In front of the Capitol's west entrance is a monument to soldiers who served and died in the Civil War, including a statue of a Union Soldier and two canons that were used during the Civil War. Other commemorative areas include a bench dedicated as a Pearl Harbor monument and an Aspen grove, comprised of seven trees, that was planted in memory of the Challenger Astronauts who perished in the tragic space shuttle disaster several years ago. There are also numerous arboreal tributes in honor of non-military activities and events ranging from Arbor Day to soil conservation efforts.
Near the center of Lincoln Park at a point where two pedestrian walkways meet, there has been erected a Washington monument-type structure, the Veterans War Memorial. Dedicated to the veterans of all of our nation's wars, that memorial rises to a height of approximately forty-five feet, making it much taller than all of the other monuments and the most prominent structure in the park, with all pathways leading to its base. The Veterans War Memorial is centered on a visual line between the State Capitol Building and the Denver City and County Building.
Throughout Lincoln Park there are several other monuments of various sizes. A statue more than twenty-feet tall stands in the park's northeast quadrant in tribute to a World War II Hispanic Congressional Medal of Honor recipient, J.P. Martinez, and commemorates the participation of Coloradans of Hispanic descent in that and other wars. The J.P. Martinez Statue is north of the Veterans War Memorial.
South of the Veterans War Memorial in the southeast quadrant of the park stands a replica of the Liberty Bell. Like the original Liberty Bell, the replica contains a phrase in raised letters taken from Leviticus in the Old Testament of the Bible, which reads: "Proclaim liberty throughout the land and unto all the inhabitants thereof." In the northwest quadrant and close to the intersection of Colfax Avenue and Broadway Street is a drinking fountain dedicated to the memory of Sadie M. Likens, who aided war survivors in the early part of this century. Also near the center of the park and across from the Veterans War Memorial near Broadway Street is a flagpole honoring those who served in the military campaign known as the Spanish-American War.
The Holy Bible, King James Version, Lev. 25:10. Respondents did not take issue with this biblical text nor did they seek the removal of the Liberty Bell replica from Lincoln Park.
The monument that has spurred this litigation is the Ten Commandments monument, which is located in the northwest quadrant of Lincoln Park, some forth to fifty feet from the intersection of Colfax Avenue and Broadway Street. The Ten Commandments monument is located adjacent to the walkway that runs in a generally northwest-southeast direction across the park. It is approximately fifty feet west of the much larger twenty-foot tall J.P. Martinez Hispanic Veterans Memorial and about thirty feet east of the larger drinking fountain monument.
The Ten Commandments monument is made of stone and is three to four feet high and about two and one-half feet wide. It is sculpted in the form of two tablets. At the top of each tablet is a floral design that surrounds the representation of two other tablets. Inside these latter tablets are symbols which were identified at trial as Phoenician letters but which form no intelligible words in that or any known language. Between the two tablets on this monument is an eye within a triangle — an "all-seeing eye" similar to that depicted on the one-dollar bill. Expert testimony indicates that this Egyptian symbol is generally considered to be secular in nature, although some people view it as representing the eye of God. Immediately below this symbol is an American eagle which is grasping an American flag.
A unique version of the text of the Ten Commandments is immediately below the American flag. It reads as follows:
THE TEN COMMANDMENTS I AM the LORD thy God
I. Thou shalt have no other gods before me. II. Thou shalt not take the name of the Lord thy God in Vain. III. Remember the Sabbath day to keep it holy. IV. Honor thy father and thy mother that thy days may be long upon the land which the Lord thy God giveth thee. V. Thou shalt not kill. VI. Thou shalt not commit adultery. VII. Thou shalt not steal. VIII. Thou shalt not bear false witness against thy neighbor. IX. Thou shalt not covet thy neighbor's house. X. Thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor's.
Below this text there are two stars of David, symbols of the Jewish religion, located one in each corner. Between the two stars of David, in the center, are two Greek letters, Chi and Rho, one superimposed upon the other, which is a symbol for the first two letters in the name "Jesus Christ" developed by the early Christian church and still found in many Catholic churches. At the very bottom of the monument appears a scroll with these words:
PRESENTED BY MEMBERS OF FRATERNAL ORDER OF EAGLES OF COLORADO B
In 1943, a Minnesota juvenile court judge decided to address what he perceived as a need of many juveniles he had encountered in his court. Believing these juveniles were "without any code of conduct or standards by which to govern their actions," the judge thought "they could benefit from exposure to one of mankind's earliest codes of conduct, the Ten Commandments." He made clear, however, that such exposure "was not to be a religious instruction of any kind." The juvenile judge decided to post a copy of the Ten Commandments in state juvenile courts across the country as part of a nationwide youth guidance program. The judge was of the opinion that the commandments would demonstrate to the youths coming in contact with the juvenile courts that there were long "recognized codes of behavior to guide and help them."
As chair of the Youth Guidance Committee of the Fraternal Order of Eagles (the "Eagles"), the judge presented his ideas to the Eagles for financial support. Initially the Eagles rejected the notion of sponsoring the National Youth Guidance Program because it was felt that such distribution "might seem coercive or sectarian." However, after representatives of the Jewish, Protestant, and Catholic faiths were able to develop a version of the Ten Commandments which was not identified with any particular religious group, the Eagles agreed to support such a youth guidance program.
The version agreed upon is the same version which is now inscribed on the monument in Lincoln Park.
At the same time, the juvenile judge received a telephone call from motion picture producer Cecil B. DeMille, who was then producing the movie "The Ten Commandments." Mr. DeMille suggested distributing copies of the Ten Commandments to coincide with the release of the movie. As a promotion of his movie, no doubt, Mr. DeMille suggested that bronze plaques be produced with the Ten Commandments imprinted for distribution throughout the country. Because "the original Ten Commandments were on granite," the judge suggested and DeMille agreed that stone or granite tablets produced by local Minnesota granite companies would be "more suitable." Various local chapters or "aeries" of the Eagles paid for the stone monuments and donated them as part of the youth guidance program to several local and state governments, including Colorado.
Since the monument was placed at Lincoln Park, maintenance costs have been minimal. The State does not allocate funds to maintain the monument; however, the State has used its employees at least once in the past thirty-five years to remove graffiti placed on the monument by vandals and to clean it on occasion.
III
In March of 1989, after Governor Romer refused a written request that the monument be removed from Lincoln Park, the respondents filed this civil action in the District Court for the City and County of Denver alleging a violation of the First Amendment Establishment Clause, U.S. Const. amend. I, and the Colorado Preference Clause, Colo. Const. art. II, § 4, and seeking removal of the monument. Initially the trial court granted summary judgment in favor of the State. However, its ruling was reversed and the case was remanded with directions to consider "the nature of the use to which the particular [public] property is devoted, the nature and purpose of the particular monument, its placement, its proximity to and juxtaposition with other memorials in the same public area, and the nature of the forum and its effect upon the audience to which it is directed" in light of Conrad I, 656 P.2d 662 (Colo. 1982), and Lemon v. Kurtzman, 403 U.S. 602 (1971). Freedom From Religion Foundation, Inc. v. State of Colorado, No. 89CA1937 (Colo.App. Feb. 7, 1991) (not selected for official publication).
On remand by the court of appeals, a trial was held which included the testimony of several lay and expert witnesses as well as documentary evidence. The trial court again entered judgment for the State. Based on the evidence presented, the trial court ruled that although the monument conveyed a message that had both a religious and a secular meaning, the monument was not displayed with any intent to foster the religion of any particular sect. The trial court's determination is consistent with the evidence presented as to the intent of the Eagles and the purpose of their gift to the State, including the testimony of numerous expert witnesses that the Ten Commandments are the basis for many of our secular laws. For example, Gilbert Horn, the Executive Director of the Colorado Council of Churches, testified:
I don't think you could find a history book anywhere that does not indicate that the same kind of law and moral imperatives contained in the Ten Commandments, which are also contained in the laws and the prescriptions of other world religions, . . . certainly serve a secular purpose in the sense they seek to bind a society together [with] commonly shared values.
Similarly, Dr. Clarence Snelling, Jr., a theology professor, testified as follows:
The Ten Commandments . . . has been instrumental to the ethical background of quite a number of cultures, and particularly was part of the background of the framers of the United States Constitution, those who wrote the ten amendments to the Constitution. It is very definitely a part of their cultural background. That material not only shows up in their history, but shows up even more so in the general legal background of English Common Law which precedes the North American experience of what we call our Constitutional government and of the Napoleonic Code, which was instrumental in the formation of the legal code from Louisiana west to California. So this material, though of a religious source, has functioned as part of the generalized culture ethic for many, many, many generations across hundreds of years to a great extent through all of western Europe and now North America.
Gregory Robbins, a theology expert, testified similarly. The testimony of these experts was undisputed.
The trial court concluded that the monument is one of "a number of monuments," which overall contain symbols of various historic events or concepts associated with American history. Further, the trial court ruled that the monument itself was "a melange of civil, political, cultural, and religious meanings." The trial court concluded that because the monument did not have the overall effect of fostering, preferring, or establishing any religion, its continued existence on state property would not violate the Establishment Clause of the First Amendment or the Preference Clause of our State Constitution.
The court of appeals reversed the trial court's ruling, finding that the monument, as it is presently located and displayed, offends against the controlling constitutional provisions. Freedom From Religion Foundation, 872 P.2d at 1256. The court of appeals found that the monument in question was, in fact, "isolated," and that the context under which the monument was displayed by the State did not include several monuments. Id. Relying on Lynch v. Donnelly, 465 U.S. 668 (1984), the court of appeals then concluded that the "overriding significance" of the text of the monument in its entirety conveys an "essential religious message." Freedom From Religion Foundation, 872 P.2d at 1265. The court of appeals held, therefore, that the monument's presence communicates government endorsement of the religious content and is thus unconstitutional. Id.
On review, pursuant to the standard set forth by the United States Supreme Court, see infra, section IV A, we must determine whether the presence of the Ten Commandments monument on state property communicates a prohibited endorsement or disapproval of religion. We hold that the monument's content and its setting among several much more prominent monuments in Lincoln Park and throughout the Capitol Complex Grounds sufficiently neutralize its religious character resulting in neither an endorsement nor a disapproval of religion. Accordingly, we reverse the judgment of the court of appeals.
By our use of the term "content" we include everything that appears on the face of the monument, including both the language of the Ten Commandments and the surrounding symbols and instructions.
IV
It is a primary principle of the Federal Establishment Clause and our own Preference Clause jurisprudence that one religious denomination cannot be preferred over another; nor can government favor religion over non-religion or non-religion over religion. Article II, section 4, of the Colorado Constitution provides:
The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness or justify practices inconsistent with the good order, peace or safety of the state. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship.
Colo. Const. art. II, § 4 (emphasis added). The last sentence of this provision is referred to as the Preference Clause. In interpreting our Preference Clause we have looked to the Establishment Clause of the First Amendment to the United States Constitution and the body of federal cases that have construed it. See, e.g., Conrad v. City and County of Denver, 724 P.2d 1309, 1313, 1315 (Colo. 1986) (Conrad II) (holding that the main intent or purpose of including a nativity scene in a holiday display on the steps of the Denver City and County building is to "promote a feeling of good will, to depict what is commonly thought to be the historical origins of a national holiday, and to contribute to Denver's reputation as a city of lights"). Consistent with our precedent set in Conrad II, for purposes of review under our Preference Clause we see no need to depart from the path cut by the United States Supreme Court for Establishment Clause cases.
A
The Establishment Clause provides: "Congress shall make no law respecting an establishment of religion. . . ." U.S. Const. amend. I. The Establishment Clause is made applicable to the states by the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). As the Supreme Court has set forth, "`[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.'" Allegheny County v. American Civil Liberties Union, 492 U.S. 573, 605 (1989) (quoting Larson v. Valente, 456 U.S. 228 (1982)). Nor can government favor religion over non-religion. Id. at 593. The natural analog also requires then that we not prefer non-religion over religion. Abington Sch. Dist. v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring) ("The fullest realization of true religious liberty requires that government . . . effect no favoritism . . . between religion and non-religion."). Furthermore, we must not encourage the government to send a message to members of any religious groups that they are not fully accepted within our greater community. See generally Laurence H. Tribe, American Constitutional Law 1174 (2d ed. 1988) (hereafter "Tribe"); see also Thomas Jefferson on Democracy 108-117 (Saul K. Padover ed., 1939). The Establishment Clause plays a central role in guaranteeing religious freedom "by forbidding official actions that signify official endorsement or exclusion based on an individual's religious beliefs." Tribe at 1187-88.
It takes no more than a moment's reflection, however, to acknowledge that not every public action which indirectly involves religion is unconstitutional. We have adopted the view that a government act which has both a religious and secular message need not, in all instances, fall as a casualty of constitutional scrutiny. See Conrad II, 724 P.2d 1309. This reality was previously stated by the Supreme Court in Zorach v. Clauson, 343 U.S. 306 (1952). There, writing for a majority, Justice Douglas suggested:
We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. . . . [W]e find no constitutional requirement which makes it necessary for government to be hostile to . . . religious influence.
Id. at 313-14.
The Constitution does not require complete separation of church and state: "[I]t affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. Anything less would require the `callous indifference' we have said was never intended by the Establishment Clause." Lynch, 465 U.S. at 673 (citing Zorach, 343 U.S. at 313-14). The Lynch Court explained: "In every Establishment Clause case, we must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible." Id. at 672. "[O]ur precedents plainly contemplate that on occasion some advancement of religion will result from governmental action." Id. at 683 (O'Connor, J., concurring). Nonetheless, "`not every law that confers an "indirect," "remote," or "incidental" benefit upon [religion] is, for that reason alone, constitutionally invalid.'" Id. (quoting Committee for Pub. Educ. Religious Liberty v. Nyquist, 413 U.S. 756, 771 (1973)); see also Widmar v. Vincent, 454 U.S. 263 (1981) (noting that "a religious organization's enjoyment of merely `incidental' benefits does not violate the prohibition against the `primary advancement' of religion").
Justice O'Connor spoke of this tension between the language of the clause and our past conduct, recognizing other governmental "acknowledgements" of religion such as government declaration of Thanksgiving as a public holiday and the printing of "In God We Trust" on coins. Lynch, 465 U.S. at 692-93 (O'Connor, J., concurring).
In Lynch, the Court upheld the display of a creche as part of an overall holiday display. The Court discussed the historical role of religion in American society and concluded that "[t]here is an unbroken history of official acknowledgement by all three branches of government of the role of religion in American life from at least 1789." Lynch, 465 U.S. at 674. The Court set forth several illustrations of the government's acknowledgement of our religious heritage and governmental sponsorship of graphic manifestations of that heritage, including religious exhibits in art galleries and the depiction of Moses and the Ten Commandments in the U.S. Courthouse. Id. at 676-77.
The creche consisted of "the traditional figures, including the infant Jesus, Mary and Joseph, angels, shepherds, kings, and animals. . . ." Lynch, 465 U.S. at 671. It is Jesus of Nazareth whom Christians believe to be the Messiah. See Allegheny County, 492 U.S. at 579 n. 1 (citing 8 Encyclopedia of Religion 15, 18 (1987)).
The test for determining whether a governmental act violates the Establishment Clause of the First Amendment was first articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971). In Lemon the Supreme Court announced a tripartite test for determining whether government action violates the Establishment Clause: "first, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; [and] finally, the statute must not foster `an excessive government entanglement with religion.'" Id. at 612-13 (citations omitted). "State action violates the Establishment Clause if it fails to satisfy any of these prongs." Edwards v. Aguillard, 482 U.S. 578, 583 (1987).
Although the tripartite test established in Lemon has never been overruled, the Supreme Court has since elaborated upon the second prong of the Lemon test — that the principal or primary effect of the government action must not be either to advance or inhibit religion. This elaboration had its beginnings in the concurrence of Justice O'Connor in Lynch. Justice O'Connor opined that whether a government's actions inappropriately advance or inhibit religion under the Lemon test depends upon whether these actions reasonably can be interpreted as governmental endorsement or disapproval of religion. Lynch, 465 U.S. at 692 (O'Connor, J., concurring). In order to make that determination, Justice O'Connor suggested that courts must consider (1) what message the government intended to convey; and (2) what message the government's actions actually conveyed to a reasonable person. Id. at 690. Justice O'Connor noted that "the meaning of a statement to its audience depends both on the intention of the speaker and on the `objective' meaning of the statement in the community." Id. Hence, as Justice O'Connor ultimately concluded, both the government's intended message and the message actually given must be secular in nature. Id.
Although there have been cases in which the Supreme Court has avoided using the Lemon test, see, e.g., Lee v. Weisman, 112 S.Ct. 2649 (1992) (question of whether religious organization could be denied the right to meet in school property after school hours was decided on Freedom of Speech grounds), the Supreme Court has declined the invitation to repudiate it.
Five years later, in Allegheny County, the Court embraced Justice O'Connor's refinement of the second prong of the tripartite Lemon test. As modified, the appropriate inquiry requires a determination as to whether the suspect government act has "the purpose or effect of `endorsing' religion." Allegheny County, 492 U.S. at 572. Justice Blackmun, writing for a divided Court in Allegheny County, noted that Justice O'Connor's concurrence in Lynch "provides a sound analytical framework for evaluating governmental use of religious symbols," id. at 573, and "the government's use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government's use of religious symbolism depends upon its context." Id. at 597.
The primary way in which courts have determined the effect of the government action is by focusing on the content of the display and the context in which the questioned object appears. For example, in Allegheny County, the Court examined two displays on public property in downtown Pittsburgh, one of a creche standing alone in a courthouse staircase and one of a menorah displayed as part of a larger winter holiday exhibit in front of the City-County building. The creche used words in its portrayal of the nativity scene — the angel in the creche said "Glory to God in the Highest!" Id. at 598. By contrast, the menorah was part of a winter holiday exhibit which included a sign with the words "Salute to Liberty" placed below a Christmas tree. The Court found that the creche display violated the Establishment Clause and the menorah display did not. Id. at 600.
In evaluating both the content and the context of the creche display, the Supreme Court noted that the creche sends an unmistakable religious message, praising God in Christian terms. The Court concluded that "nothing in the content of the display detracts from the creche's religious message." Id. at 598. The Court also noted the physical setting and location of the creche, concluding that it "stands alone; it is the single element of the display on the Grand Staircase." Id. The Court then pointed out that the Grand Staircase is "the `main' and `most beautiful part' of the building that is the seat of county government." Id. at 599. The Court concluded that "no viewer could reasonably think that it occupies this location without the support and approval of the government." Id. at 599-600.
The menorah display, on the other hand, was part of a holiday season display which saluted liberty; the Court found that the context of the entire display neutralized the religious dimension of the display. The Court conceded that the menorah is a religious symbol: it serves to commemorate the miracle of oil as described in the Talmud. Id. at 613. The Court also noted, however, that the menorah is a symbol of a holiday that, like Christmas, has both religious and secular dimensions. Id. The Court held that since the menorah stood next to a Christmas tree and a sign saluting liberty, it created an "overall holiday setting." Id. at 614.
The Talmud, an "all-embracing constitution of medieval Jewish life," is an extended, multivolume compilation of rabbinic teachings, including law, morality, and theology. The Hebrew word talmud means "study." The original writings, which were substantially supplemented over time, were "completed" by the middle of the fifth century. See 14 Encyclopedia of Religion 256-57 (1987).
B
Several courts have examined the content and context of Ten Commandments displays in evaluating their constitutionality. For example, in Anderson v. Salt Lake City Corp., 475 F.2d 29 (5th Cir. 1973), under circumstances similar to those present here, the Fifth Circuit Court of Appeals allowed a gift of the Order of Eagles to be displayed on the courthouse grounds. This gift was a granite monument inscribed with the Ten Commandments and other religious and nonreligious symbols much like the monument in the case at bar. The court found that the gift was nothing more than a historically important monument with both secular and sectarian effects. The court held that the monument was being presented primarily for its historical significance and that it would be unreasonable to require removal of the monument simply because it reflected the religious nature of an ancient era. Id. at 34. But see Harvey v. Cobb County, Ga., 811 F. Supp. 669, 678 (N.D. Ga. 1993) (placement of Ten Commandments alone in alcove of the courthouse, high on the wall, with no countervailing secular passages or symbols, had effect of endorsing religion).
We do not accept the Anderson court's use of the term "monolith" in reference to the Ten Commandments monument. See infra, p. 26 n. 16.
It has been where the display or publication of the Ten Commandments concerns public schools — where young and impressionable minds are in need of greater protection — that courts have been less tolerant of the potential to inappropriately persuade or coerce students by religious views. In Stone v. Graham, 449 U.S. 39 (1980), for example, vigilance to avoid and protect against coercion properly prevailed over a fear that the prohibition might be hostile to religion. In Stone, the United States Supreme Court invalidated a state statute requiring the posting of a copy of the Ten Commandments on public classroom walls. Each plaque bore a notation expressing the purpose was to demonstrate the secular application of the Ten Commandments as the fundamental legal code of western civilization and the common law of the United States. Despite that avowed purpose, the Court concluded the statute served no secular legislative purpose and was therefore unconstitutional. The Court found that "the pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature," id. at 41, noting that the commandments were not "integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like." Id. at 42; see also Ring v. Grand Forks Pub. Sch. Dist. No. 1, 483 F. Supp. 272, 274 (D.N.D. 1980) (The purpose is to "display the Ten Commandments of the Christian religion in a conspicuous place in all classrooms. There is not even a pretense of a secular purpose in the statute or in the defendants' compliance with the statute.").
The differences between the Anderson monument and the Stone and Ring displays are significant and make reliance on cases involving the publication of the Ten Commandments in classrooms misplaced. The monuments in Stone and Ring were placards containing the Ten Commandments of the Christian religion, meant to be placed in a conspicuous place in all classrooms, where students' attendance is mandatory and frequent, as a means of instilling in students certain values. Stone, 449 U.S. at 42; Ring, 483 F. Supp. at 274. School religion cases require a more stringent analysis because of the age of the minds affected, and because students are captive audiences, especially susceptible to influence. In Anderson, however, the monument presented was not associated with any one particular religion, and was not displayed in a location meant to influence the thinking of young children. Rather, the monument was presented primarily for its historical significance. Anderson, 475 F.2d at 34. Thus, the analysis applied by the Anderson court is more relevant to this case.
In addition, the Stone case involved a legislative act, whereas the Anderson case, as here, involved only a single state action.
Despite the undeniably religious nature of the Ten Commandments, federal courts have generally concluded that if there are countervailing secular passages or symbols in the content of the display or if the context of the display detracts from its religious message, then the display may be constitutional. See, e.g., Anderson, 475 F.2d 29; Harvey, 811 F. Supp. at 677-78; see generally Lynch, 465 U.S. at 683.
See, e.g., Stone, 449 U.S. at 41-42 ("The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshiping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day."); Harvey, 811 F. Supp. at 677 ("The Ten Commandments are an integral part of the Jewish and Christian traditions, appearing in the book of Exodus in the Bible or Old Testament.").
V
Following the principles set forth in the Conrad cases, and the legal standard set forth in Lemon as modified by the United States Supreme Court in Allegheny County, the constitutionality of the Ten Commandments monument in this case will depend upon whether the display has the purpose or effect of endorsing or disapproving of religion. Resolution of that issue will rest in large part on the particular content and physical setting of the monument. See Allegheny County, 492 U.S. at 595.
Conrad I was decided prior to the Supreme Court's decisions in Lynch and Allegheny County.
A
Upon consideration of the content of the monument itself, we conclude that it was not erected with the purpose of endorsing religion. The monument at issue here does not reproduce exactly the Ten Commandments as accepted by any particular sect. The text includes symbols of at least two significant religions, Judaism and Christianity, whose teachings are in substantial conflict with each other. We find that the juxtaposition of the Christian Chi and Rho with the Jewish Star of David reflects an acknowledgement of reconciliation and diversity more than any sentiment of intolerance. Between the two tablets is an "all-seeing eye" which has both secular and nonsecular meanings. Dr. Clarence Snelling, Jr. testified that the "eternal eye" contains the pyramid, which is a symbol from Egypt itself, indicating that "it has a different genesis than the three religions that use the Ten Commandments." The monument also has patriotic symbols in the form of an eagle and the flag.
For purposes of this discussion, we deem it unnecessary to distinguish between the several Christian faiths or denominations.
The expert witnesses agreed that the "all-seeing eye" is most commonly used as a secular symbol, giving its use on the one-dollar bill as an example.
Furthermore, the content of the monument is consistent with the stated secular purpose of the donation. The monument was donated as part of the National Youth Guidance Program, whose purpose was secular in nature. Such secular intent of the donation is logical in light of the historical fact that the Ten Commandments has served over time as a basis for our national law. All the experts who testified at trial agreed that, at least to the extent that the Commandments established ethical or moral principles, they were expressions of universal standards of behavior common to all western societies. It was agreed that these moral standards, as influenced by the Judeo-Christian tradition, have played a large role in the development of the common law and have formed a part of the moral background for the adoption of the national constitution. While a statement disclaiming any religious purpose perhaps would have provided greater evidence of no intention to promote religion, the existence of such a statement or its absence alone is not determinative.
E.J. Ruegemer, the Minnesota juvenile court judge who conceived of this idea, submitted an affidavit which was accepted into evidence, stating that posting the Ten Commandments was "not to be a religious instruction of any kind," but rather was meant to "show these youngsters that there were such recognized codes of behavior to guide and help them." Judge Ruegemer's statements are consistent with an exhibit admitted during the trial that contained a short article in the July, 1955, edition of the Denver Eagle, a publication of the Eagles, announcing the donation of the Ten Commandments monument to the State of Colorado. The article reads in its entirety as follows:
The Colorado Eagles will donate a monolith to the State containing the ten commandments, to be placed on the Capitol grounds in the next few months. A part of the National Youth Guidance Program, the large marble piece was approved at the Lamar State Convention.
We find the conspicuous absence of any reference to religion by the Eagles and the Eagles' original hesitance to provide the gift out of fear that the organization might be viewed as endorsing religion to be important and consistent with a conclusion that it was given with secular purpose. Finally, we note that if there is any discrepancy in the article or any exaggeration, it is the reference to the monument as a "monolith" and as a "large marble piece." (Emphasis added.) Webster's defines "monolith" as "a single great stone often in the form of an obelisk or column" or something "usually having tremendous size or strength." Webster's Third New International Dictionary 1462 (1986). Standing three to four feet high and two and one-half feet wide, we find the monument is not a "monolith," is not "large" and that, by its setting, is not even a prominent feature of Lincoln Park.
For example, Gregory Robbins, a theology expert witness for the State, testified that:
even though there are elements of this monument that are overtly religious, the monument can also be seen to harken back to those moral languages, those two streams that developed our sense of law, and that it is possible to construe this monument as being a monument to the fact that we as a republic are a people who pay attention to law. . . . I think it is possible to construe [commandments] two through ten as being examples of law that this country has observed from its very beginning.
Finally, the record contains no direct evidence of the State's purpose in accepting the monument because, as found by the trial court, the State has no record of how the monument came to be in Lincoln Park. The record does reflect, however, through the testimony of several state employees, that the State's purpose in accepting any monuments in that park is not to endorse the message depicted in the various monuments, but rather to open the public park up to all different types of groups interested in utilizing the valuable state grounds. Given the State's generally neutral objective in accepting monuments, and absent evidence to the contrary, we presume that the donative intent is also the basis of acceptance. We ascribe to the donee the intent of the donor — that is, acceptance of the gift by the State, without other evidence, indicates the State's assent to the Eagles' stated secular purpose.
B
The message the object conveys in context is also significant in a determination of whether the display has the effect of endorsing religion, because the context may affect the message a reasonable observer would derive from the setting. As the trial court found, the Ten Commandments monument in this case does not stand alone and is not a conspicuous feature of Lincoln Park. In the immediate vicinity of the Ten Commandments monument are both the much larger Martinez Statue and the larger drinking fountain monument; secular monuments similar to those are also found throughout the Capitol Complex Grounds. In fact, the Ten Commandments monument is one of the smallest and least conspicuous of the displays in Lincoln Park. Furthermore, it is not displayed in the central or most prominent part of the park, which is reserved for two tributes to veterans, the Veterans Memorial and the flag monument. In essence, the monument is found in what is much like a museum setting which, "though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content." Lynch, 465 U.S. at 692.
The various monuments found around the park in fact represent a cornucopia of different cultural events and experiences that make up the history of our nation and reflect upon a history that is also Colorado. For example, the J.P. Martinez statue is in tribute to a Hispanic medal of honor recipient and commemorates the military service of Colorado citizens of Hispanic descent; the metal flagpole is dedicated to all citizens killed in the Spanish-American War; and the metal reproduction of the Liberty Bell celebrates the freedom upon which this country was founded. This collection of monuments celebrates a history of standing up against oppression, foreign and domestic, and an acknowledgement of the cultural tapestry that is Colorado.
We note here that, within limits that do not send a message that government is hostile towards any identifiable group or that any members of any group are not fully accepted members of our community, the State has a vital interest in preserving and protecting different religious, cultural and ethnic backgrounds and traditions.
Although displayed on public property, unlike the school setting cases, the monument is not located so as to have a coercive effect. In fact, unlike in Anderson, where citizens exercising their right to access the courts or other government benefits might encounter the monument upheld there, here the monument occupies an inconspicuous place where citizens may be found by choice and are not necessarily present for purposes related to government. While the text of the Ten Commandments affixed to a monument would not be appropriately placed on state property standing alone, here the Ten Commandments monument and its countervailing secular text fits within the melange of historical commemorative accounts found in Lincoln Park. Furthermore, the display of monuments in Lincoln Park teaches a history of rich cultural diversity — due to our past it would be inaccurate to ignore a history that includes religion.
As stated in the testimony of Gregory Robbins:
[I]n religious studies we are very much concerned about things that create sacred space. And that architecture has ways of telling you that this is holy ground, this is sacred space, this is a religious zone, if you will. So, for example, if you enter into a cathedral, the Basilica of the Immaculate Conception, you have holy water, you have multiple symbols that tell you that you have passed from a secular zone, Colfax Avenue, to a sacred zone, to a holy space.
This monument, in the context of the state capitol, which is not supported by other sacred symbols for either the Jewish or the Christian tradition, surrounded as it is by other sorts of memorials, the Vietnam memorial, the cannons, as well as other buildings, there is nothing about this monument that establishes the place around it or the monument as sacred space. There simply is not the supporting symbols, the supporting architectural configuration that would suggest that.
C
Accordingly, we find that the content and context of the monument negate any suggestion that the government is endorsing religion. We conclude on the record before us that objective viewers would not perceive the monument in its Lincoln Park setting as government endorsing religious belief or suggesting that religion in general is relevant to their standing in the political community.
VI
Establishment Clause cases require highly fact specific scrutiny which must be approached on a case-by-case basis. In Conrad I we recognized that analysis of a Preference Clause challenge to governmental action "is dependent in important part on factual determinations." Conrad I, 656 P.2d at 667. The controlling question in this case is what a reasonable observer might fairly understand to be the primary message of the monument, as displayed in its particular setting. We find that, considering the monument and its placement in the park as well as the proximity of other monuments, the Ten Commandments monument is not isolated and, as displayed in Lincoln Park, does not convey a primarily religious message.
The determination of whether the monument has the purpose or effect of endorsing religion also involves questions of law. In its review, the trial court did not apply the Lemon test as set forth in Allegheny County; however, after applying that test to the undisputed evidence and the findings set forth by the trial court, we find that the trial court reached the correct result.
We believe it would result in the very callous indifference suggested by Justice Douglas in Zorach to exaggerate the effect of benign religious messages by suggesting they automatically inculcate religion. The flaw of such a result would be to assume improper motive and to credit inappropriate religious involvement by the State in every message of historical or solemn significance in which religious precepts may also be attributed to the words and symbols used. Under our Establishment and Preference Clause jurisprudence, any religious meaning of legal consequence must ultimately flow from the character of the state action as perceived by an objective observer, but does not turn on whether the message, though secular, also has religious value. We conclude that applying the objective observer test under the particular circumstances before us today, such a predominant religious character is not intuitively obvious. Nonetheless, while we are to be vigilant to bar state conduct that results in the establishment of religion, we are not to engage in an exercise intended to require government to prefer non-believers over believers.
Judicial review of Establishment and Preference Clause cases does not begin and end with a determination that the offending conduct includes a message of religious value. If that were the case, the result in Conrad I and Conrad II could not stand in the face of an inquiry designed to determine whether the creche, standing alone, sends a religious message. Moreover, if such an examination were the standard by which to apply our First Amendment jurisprudence, then Congressional prayer, the cry of the Clerk of the Supreme Court, and setting aside secular holidays such as Thanksgiving or Christmas could not withstand scrutiny.
Upon opening each session of the United States Supreme Court, the Clerk announces, "God save the United States and this Honorable Court."
Because of their "history and ubiquity," such government acknowledgements of religion are not understood as conveying government approval of particular religious beliefs. See Lynch, 465 U.S. at 693 (O'Connor, J., concurring).
VII
Accordingly, applying the legal standard set forth in Lemon as modified by Allegheny County, we find that the preeminent purpose of erecting the monument was not plainly religious in nature — rather, the monument represents the secular objective intended at the outset, recognition of a historical, jurisprudential cornerstone of American legal significance. Moreover, the content and context of the display do not convey a message that any person is excluded from our political community based on religious beliefs or the lack of such beliefs. Thus, we conclude that the Ten Commandments monument does not have the purpose or effect of endorsing religion, nor does it suggest the State's disapproval of any religious or non-religious choices protected by our Federal and State Constitutions. For the foregoing reasons, we reverse the judgment of the court of appeals.
We do not question the motives of the respondents, and in no way do we doubt the sincerity and strength of their convictions. We note only that the test to be applied is not a subjective one. As the United States Supreme Court stated in Lynch, 465 U.S. at 690: "The meaning of a statement to its audience depends both on the intention of the speaker and on the `objective' meaning of the statement in the community." In this case the evidence points to the secular intent of the speaker and the objectively viewed secular message conveyed. As stated more recently by the Supreme Court while striking down certain state conduct implicating religion under the Free Speech Clause of the First Amendment, "[w]e do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive." Lee, 112 S.Ct. at 2661.
JUSTICE ERICKSON dissents. JUSTICE LOHR dissents. JUSTICE KIRSHBAUM dissents.