Lambeth v. Bd of Comm Davidson

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES F. LAMBETH, JR.; MICHAEL 

D. LEA,

Plaintiffs-Appellants,

v.  No. 04-1753

THE BOARD OF COMMISSIONERS OF

DAVIDSON COUNTY, NORTH CAROLINA,

Defendant-Appellee.



Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

William L. Osteen, District Judge.

(CA-03-592)

Argued: February 3, 2005

Decided: May 13, 2005

Before WIDENER and KING, Circuit Judges, and

Henry F. FLOYD, United States District Judge for the

District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge King wrote the opinion, in

which Judge Widener and Judge Floyd joined.

COUNSEL

ARGUED: George Daly, Charlotte, North Carolina, for Appellants.

James Redfern Morgan, Jr., WOMBLE, CARLYLE, SANDRIDGE &

RICE, P.L.L.C., Winston-Salem, North Carolina, for Appellee. ON

2 LAMBETH v. BD. OF COMM’RS

BRIEF: John W. Gresham, FERGUSON, STEIN, CHAMBERS,

ADKINS, GRESHAM & SUMTER, Charlotte, North Carolina, for

Appellants.

OPINION

KING, Circuit Judge:

Plaintiffs Charles F. Lambeth, Jr. and Michael D. Lea appeal the

district court’s dismissal of their complaint in this civil action for fail-

ure to state a claim upon which relief can be granted. Fed. R. Civ. P.

12(b)(6). Plaintiffs have alleged, pursuant to 42 U.S.C. § 1983, that

the Board of Commissioners of Davidson County, North Carolina (the

"Board"), violated the Establishment Clause of the First Amendment

when it authorized the phrase "In God We Trust" to be inscribed on

the facade of the Davidson County Government Center (the "Govern-

ment Center"). The district court, upon analyzing the Plaintiffs’ alle-

gations, concluded that they failed to assert a violation of the

Establishment Clause, as measured by the test prescribed by the

Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)

(the "Lemon test"). As explained below, we affirm.

I.

Plaintiffs Lambeth and Lea are lawyers who regularly practice in

the Government Center, located in the City of Lexington, the county

seat of Davidson County, North Carolina. On June 24, 2003, the

Plaintiffs filed this civil action against the Board under § 1983, alleg-

ing a violation of the Establishment Clause of the First Amendment.1

1

The Establishment Clause provides, "Congress shall make no law

respecting an establishment of religion . . . ." U.S. Const. amend. I. The

Supreme Court has advised that this protection is incorporated by the

Fourteenth Amendment as a protection against establishment of religion

by the states. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)

("The First Amendment declares that Congress shall make no law

respecting an establishment of religion . . . [and] [t]he Fourteenth

Amendment has rendered the legislatures of the states as incompetent as

Congress to enact such laws.").

LAMBETH v. BD. OF COMM’RS 3

They maintain that, around December 31, 2002, the Board unconstitu-

tionally decided to inscribe the national motto, "In God We Trust," on

the Government Center (the "display"). According to the Plaintiffs,

Board members and the public spoke both in favor of and against the

proposed display at the crucial Board meeting, emphasizing the reli-

gious nature of the words "In God We Trust," and observing that the

display depicted the national motto. The display has since been

installed on the front facade of the Government Center in eighteen-

inch block letters.

On August 21, 2003, the Board moved to dismiss the Plaintiffs’

action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Proce-

dure, for failure to state a claim upon which relief could be granted.

Soon thereafter, on September 15, 2003, the Plaintiffs filed their First

Amended Complaint (the "Complaint"). On October 2, 2003, the

Board filed another Rule 12(b)(6) motion, asserting that the Com-

plaint was legally deficient and incorporating by reference the conten-

tions made in the Board’s initial motion to dismiss.

On May 25, 2004, the district court dismissed the Complaint, con-

cluding that it failed to state a claim of a First Amendment violation

on which relief could be granted. Lambeth v. Bd. of Comm’rs, No. 03-

cv-592-WLO (M.D.N.C. May 25, 2004) (the "Memorandum Opin-

ion"). In so ruling, the court determined that the allegations of the

Complaint fail, under the Lemon test, to demonstrate a violation of the

Establishment Clause. Memorandum Opinion at 44. The Plaintiffs

have timely appealed, and we possess jurisdiction pursuant to 28

U.S.C. § 1291.

II.

We review de novo a district court’s dismissal of a complaint under

Rule 12(b)(6). Duckworth v. State Admin. Bd. of Election Laws, 332

F.3d 769, 772 (4th Cir. 2003). Under controlling principles, a district

court may dismiss a complaint for failure to state a claim only if it

appears beyond doubt that the plaintiff can prove no set of facts that

would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46

(1957). In assessing a Rule 12(b)(6) issue, we accept as true the fac-

tual allegations of the challenged complaint, see Zinermon v. Burch,

494 U.S. 113, 118 (1990), and we view those allegations in the light

4 LAMBETH v. BD. OF COMM’RS

most favorable to the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 236

(1974). On appeal, our inquiry is limited to whether the "pleadings

adequately state a set of facts which, if proven to be true, would enti-

tle [the plaintiff] to judicial relief." Duckworth, 332 F.3d at 772.

III.

A.

Under our precedent, the Establishment Clause issue presented

here is properly analyzed (as the district court did in making its chal-

lenged ruling), under the Lemon test enunciated by the Supreme

Court. See Mellen v. Bunting, 327 F.3d 355, 370 (4th Cir. 2003)

(applying Lemon test to analysis of Establishment Clause challenge

to state university’s supper prayer). In Lemon, the Court considered

a state statute benefitting parochial school teachers, and assessed the

constitutionality of the statute by examining whether it satisfied three

conditions: first, whether there was a secular purpose behind the stat-

ute; second, whether the statute’s principal or primary effect was one

that neither advanced nor inhibited religion; and third, whether the

statute fostered an "excessive government entanglement with reli-

gion." 403 U.S. at 612-13. To pass muster under the Establishment

Clause, a challenged government action must satisfy each of the

Lemon test’s three criteria. Mellen, 327 F.3d at 367. In County of Alle-

gheny v. American Civil Liberties Union, the Court elaborated on the

Lemon test by examining whether the governmental use of an object

with religious meaning (there, a crèche) had the effect of "endorsing"

religion. 492 U.S. 573, 593-94 (1989). As we recognized in Mellen,

we have treated County of Allegheny’s "endorsement" test as an "en-

hancement of Lemon’s second prong." See Mellen, 327 F.3d at 370-

71.

In this proceeding, the district court concluded that the Complaint

failed to adequately allege that the display contravened any of the

Lemon test’s three prongs. First of all, the court determined, under the

first prong, that the Complaint failed to allege an entirely religious

purpose behind the Board’s installation of the display. Memorandum

Opinion at 22-24. Next, the court determined, under the second prong,

that the display could not have the primary effect of advancing reli-

gion in the eyes of a reasonable, informed observer. Id. at 24-37.

LAMBETH v. BD. OF COMM’RS 5

Finally, the court concluded that the display of the national motto did

not result in an "excessive entanglement" of government with reli-

gion, and thus that it did not contravene the third prong. Id. at 37-44.

On appeal, the Plaintiffs contend that the district court erred in its

application of the Lemon test, and that the allegations of the Com-

plaint are sufficient to proceed to discovery. They maintain that the

Complaint alleges that the Board’s "dominant" purpose in approving

the display was religious, which, they contend, is sufficient to allege

that the display fails the Lemon test’s first prong; that the effect of the

display is to advance or endorse religion, prohibited by the Lemon

test’s second prong; and that the display results in an excessive entan-

glement of government with religion, precluded by the Lemon test’s

third prong. Pursuant to Lemon and its progeny, we assess de novo

the alleged constitutional defects of the display.

1.

We first assess, under prong one of the Lemon test, whether the

Complaint sufficiently alleges that the Board’s adoption of the chal-

lenged display lacked a secular intent. As the district court observed,

the Complaint alleges that both secular and religious aspects of the

display were discussed at the crucial Board meeting. Memorandum

Opinion at 22-24. The Complaint alleges that Board members, and

members of the public as well, "emphasized" at the Board meeting the

religious nature of the phrase "In God We Trust," and that the display

was thereafter adopted. Complaint at ¶ 3(u)-(v). The Complaint fur-

ther alleges that one Board member observed that voting against the

installation of the display would be perceived by the public as a vote

against God. Id. at ¶ 3(y). Finally, the Complaint also alleges that "the

fact that these words are also the national motto was mentioned but

not emphasized at the meeting at which defendant authorized the dis-

play." Id. at ¶ 3(w).

Although the Plaintiffs contend that their allegations are sufficient

in this regard, we are constrained to disagree. Under applicable

Supreme Court precedent, a "legitimate secular purpose" supporting

a challenged governmental action will suffice to satisfy the Lemon

test’s first prong. See Lynch v. Donnelly, 465 U.S. 668, 681 (1984).

And, as we have previously observed, the demonstration of such a

6 LAMBETH v. BD. OF COMM’RS

legitimate secular purpose is "a fairly low hurdle." Brown v. Gilmore,

258 F.3d 265, 276 (4th Cir. 2001). Indeed, we will deem the first

prong of the Lemon test to be contravened "only if [the action] is

‘entirely motivated by a purpose to advance religion.’" See Mellen,

327 F.3d at 372 (quoting Wallace v. Jaffree, 472 U.S. 38, 56 (1985)).

A legitimate secular purpose is thus sufficient to pass muster under

the first prong of the Lemon test, unless the alleged secular purpose

is in fact pretextual. See Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S.

290, 308-09 (2000); see also Stone v. Graham, 449 U.S. 39, 41 (1980)

("The Ten Commandments are undeniably a sacred text in the Jewish

and Christian faiths, and no legislative recitation of a supposed secu-

lar purpose can blind us to that fact."). In this matter, the Complaint

fails to allege that the Board’s discussion of the phrase "In God We

Trust" as the national motto was a pretext for its religious motiva-

tions, and thereby fails to allege that there was no legitimate secular

purpose to the Board’s approval of the display. As a result, the dis-

play’s installation, on the basis of allegations of the Complaint, does

not contravene the Lemon test’s first prong.2

2.

Turning to the Lemon test’s second prong, we next assess whether

the Complaint alleges that the display’s principal or primary effect is

to advance or inhibit religion, or whether the display has the effect of

"endorsing" religion. In this regard, the Plaintiffs contend that the dis-

trict court erred in concluding that the Complaint’s allegations of the

religious meaning and effect of the display fail to contravene the

Lemon test’s second prong. Again, we disagree.

2

The Plaintiffs contend that they are required to demonstrate an "en-

tirely religious" purpose for the display only after discovery has been

completed, rather than in their Complaint at the pleading stage. However,

a complaint must contain a short and plain statement showing an entitle-

ment to relief. Fed. R. Civ. P. 8(a). While the sufficiency of the Com-

plaint’s allegations presents a close question, the Plaintiffs have

conceded in the Complaint that there was some secular purpose in the

display, without alleging that the purported secular purpose was pretex-

tual. The Plaintiffs have therefore failed to establish a dispute over the

display’s purpose that would justify discovery.

LAMBETH v. BD. OF COMM’RS 7

a.

We have heretofore characterized the phrase, "In God We Trust,"

when used as the national motto on coins and currency, as a "patriotic

and ceremonial motto" with "no theological or ritualistic impact."

Carolina Civil Liberties Union Legal Found. v. Constangy, 947 F.2d

1145, 1151 (4th Cir. 1991). The use of the challenged phrase as the

national motto is long-standing, and it has been used extensively over

the years by the federal government. By way of example, Congress

first authorized the National Mint to include "In God We Trust" on

coins in 1865, and made its inclusion mandatory on gold and silver

coins in 1908. Its use was extended to the national currency in 1955.

Importantly, Congress made "In God We Trust" the national motto in

1956, and the motto is inscribed above the Speaker’s Chair in the

House of Representatives, and also above the main door of the Senate

Chamber.

The Supreme Court has strongly indicated on several occasions,

albeit in dicta, that governmental use of the motto "In God We Trust,"

does not, at least in certain contexts, contravene the mandate of the

Establishment Clause. See County of Allegheny, 492 U.S. at 602-03

("[O]ur previous opinions have considered in dicta the ["In God We

Trust"] motto . . ., characterizing [it] as consistent with the proposi-

tion that government may not communicate an endorsement of reli-

gious belief."); Lynch, 465 U.S. at 693 (O’Connor, J., concurring)

("[G]overnment’s display of the crèche in this particular physical set-

ting [is] no more an endorsement of religion than such governmental

‘acknowledgments’ of religion as . . . [the] printing of ‘In God We

Trust’ on coins . . . ."). Such observations by the Court, interpreting

the First Amendment and clarifying the application of its Establish-

ment Clause jurisprudence, constitute the sort of dicta that has consid-

erable persuasive value in the inferior courts. See Garris v. Norfolk

Shipbldg. & Drydock Corp., 210 F.3d 209, 227 (4th Cir. 2000) (Hall,

J., concurring) (observing that Court’s interpretation of its own opin-

ion is persuasive).

As the Plaintiffs properly recognize, however, the County’s instal-

lation of the national motto on the facade of the Government Center

constitutes a governmental action which goes beyond the traditional

uses of the phrase, as discussed in the Court’s dicta and by our prece-

8 LAMBETH v. BD. OF COMM’RS

dent, which have been limited to the phrase’s appearance on coins and

currency, and as the national motto. Plaintiffs urge that, no matter

how the challenged phrase is viewed in its use on coins, currency, and

in other long-standing contexts, such uses are inapposite to the

Board’s display here — only recently installed on the Government

Center. As a result, the Plaintiffs urge us to view the Board’s use of

the phrase on a blank slate. And, they contend, when viewed in that

light, an objective observer would understand the Board’s display of

this "religious creed" as an unconstitutional endorsement of religion.

Plaintiffs’ contention on this point, however, slightly mischaracter-

izes the analysis required under the Lemon test’s second prong. It sug-

gests that anything not wholly secular contravenes the Establishment

Clause, unless it has been specifically "grandfathered" by longstand-

ing use. The proper analysis is the converse: whether a particular dis-

play, with religious content, would cause a reasonable observer to

fairly understand it in its particular setting as impermissibly advanc-

ing or endorsing religion. See County of Allegheny, 492 U.S. at 598-

00. As the Supreme Court observed in Lynch, to "[f]ocus exclusively

on the religious component of any activity would inevitably lead to

its invalidation under the Establishment Clause." 465 U.S. at 680.

Instead, the Court has consistently concluded that displays with reli-

gious content — but also with a legitimate secular use — may be per-

missible under the Establishment Clause. See, e.g., County of

Allegheny, 492 U.S. at 579 (concluding that display of menorah did

not violate Establishment Clause).

In this situation, the reasonable observer must be deemed aware of

the patriotic uses, both historical and present, of the phrase "In God

We Trust." See Good News Club v. Milford Cent. Sch., 533 U.S. 98,

119 (2001) ("‘[T]he reasonable observer in the endorsement inquiry

must be deemed aware of the history and context of the community

and forum in which the religious [speech takes place]’") (quoting

Capitol Square Review and Advisory Bd. v. Pipette, 515 U.S. 753,

779-80 (1995) (O’Connor, J., concurring)). As a result, we are

obliged to assess the Board’s use of the national motto on the facade

of the Government Center in its full context — as a statement with

religious content, and as one with legitimate secular associations born

of its consistent use on coins and currency, and as the national motto.

The question under the Lemon test’s second prong is whether, taking

LAMBETH v. BD. OF COMM’RS 9

these associations into account, the display’s principal or primary

effect is to advance or inhibit religion; or, put differently, whether an

informed, reasonable observer would view the display as an endorse-

ment of religion. We now turn to an assessment of that question.

b.

The Plaintiffs maintain that, in making this analysis under the

Lemon test’s second prong, we must consider the reasonable observer

to be aware of the religious comments made in favor of the display

at the Board meeting where it was authorized. However, as the district

court determined, the allegations of the Complaint on the Board’s

intent are inapplicable to the Lemon test’s second prong. The first and

second prongs of the Lemon test are intended to assess different

aspects of a challenged government action. Prong one of the Lemon

test looks at the purpose behind such an action, and allows the action

to stand if it is not "entirely motivated by religion." Mellen, 327 F.3d

at 372. Prong two, by contrast, assesses the effect of the action,

Lemon, 403 U.S. at 612-13, and inquires "whether, irrespective of

government’s actual purpose, the practice under review in fact con-

veys a message of endorsement or disapproval [of religion]," Mellen,

327 F.3d at 373 (quoting Wallace, 472 U.S. at 56 n. 42). Prong two

thus looks to the effect of the display itself, not to the display’s origin.

See Constangy, 947 F.2d at 1151 (explaining that, under the Lemon

test’s second prong, "intent is irrelevant").

With these principles in mind, we are constrained to conclude,

under the Lemon test’s second prong, that the installation of the

national motto "In God We Trust" on the Government Center would

not cause a reasonable observer to fairly understand the purpose of

the message "in its particular physical setting" to impermissibly

advance or endorse religion. County of Allegheny, 492 U.S. at 598-00;

see also Good News Club, 533 U.S. at 119 (emphasizing that Estab-

lishment Clause does not create a "heckler’s veto"). The Complaint

alleges no circumstances — such as an inappropriate context or char-

acter — to negate the legitimate secular connotations arising from the

long-standing patriotic uses in this country of the phrase "In God We

Trust." A reasonable observer contemplating the inscription of the

phrase on the Government Center would recognize it as recently

installed, but also as incorporating familiar words — a phrase with

10 LAMBETH v. BD. OF COMM’RS

religious overtones, to be sure, but also one long-used, with all its

accompanying secular and patriotic connotations as our national

motto and currency inscription. In this setting, we thus conclude that

the Board’s use of the national motto in the challenged display does

not contravene the Lemon test’s second prong.

3.

Finally, we are obliged to assess, under the Lemon test’s final

prong, whether the Complaint sufficiently alleged that the challenged

display has created an "excessive entanglement" between government

and religion. In this regard, Plaintiffs contend that the district court

erroneously declined to consider their allegations of "political divi-

siveness," which they deem to be pertinent to the issue of "excessive

entanglement."

The type of "divisive political potential" which the Supreme Court

has identified as a concern under the Establishment Clause is "politi-

cal division along religious lines." Lemon, 403 U.S. at 622. And, as

we recognized in Ehlers-Renzi v. Connelly School of the Holy Child,

Inc., the Court has confined its "political divisiveness" rubric to

"‘cases where direct financial subsidies are paid to parochial schools

or to teachers in parochial schools.’" 224 F.3d 283, 292 (4th Cir.

2000) (quoting Mueller v. Allen, 463 U.S. 388, 403-04 n. 11 (1983)).

The Court’s "political divisiveness" rubric is thus inapplicable to the

circumstances of this case.

Moreover, there are no other apparent grounds, either alleged in or

arising from the Complaint, on which to find an "excessive entangle-

ment" between government and religion in this case that would con-

travene the Lemon test’s third prong. The kind of excessive

entanglement of government and religion precluded by Lemon is

characterized by "comprehensive, discriminating, and continuing state

surveillance" of religious exercise, see Lemon, 403 U.S. at 619, which

is simply not present here. The display on the Government Center

does not require pervasive monitoring or other maintenance by public

authorities. See Mueller, 463 U.S. at 403 (explaining that such com-

prehensive surveillance is "necessary [for a challenged action] to run

afoul of" Lemon’s third prong); see also Agostini v. Felton, 521 U.S.

203, 233-34 (1997) (concluding that program of sending public

LAMBETH v. BD. OF COMM’RS 11

school teachers into parochial schools to provide remedial education

to disadvantaged children did not result in excessive entanglement).

Nor does the display require any other sort of continued and repeated

government involvement with religion. See Mellen, 327 F.3d at 375

(determining that public university’s supper prayer violated Lemon’s

third prong because school officials "composed, mandated, and moni-

tored a daily prayer"). As a result of the foregoing, we must also con-

clude that the display does not contravene the Lemon test’s third

prong.

B.

In sum, even accepting the allegations of the Complaint as true, the

display does not contravene any of the three prongs of the Lemon test.

The Complaint fails to sufficiently allege that the display had no legit-

imate secular purpose; that it has the effect of advancing or endorsing

religion; or that it results in an excessive entanglement of government

and religion. As a result, we agree with the comprehensive analysis

made by the district court with regard to this dispute, see Memoran-

dum Opinion at 18-44, and conclude that the Complaint fails to state

a claim for relief under the Establishment Clause upon which relief

can be granted.

IV.

Pursuant to the foregoing, we affirm the judgment of the district

court.

AFFIRMED