Aug. 16, 2006, 2:01AM
Court: Bible display must go
Ruling finds Harris County monument's initial purpose was changed
By HARVEY RICE and BILL MURPHY
Copyright 2006 Houston Chronicle
A Bible must be removed from a 50-year-old monument in front of the Harris County civil courthouse because a district judge changed it from a secular to a religious use in violation of the Constitution, a federal appeals court ruled Tuesday.
"Its recent history would force an objective observer to conclude that it is a religious symbol of a particular faith located on public grounds," a three-judge panel of the 5th U.S. Circuit Court of Appeals said in a 2-1 decision.
Although secular in purpose when it was erected in front of the old civil courthouse in 1956, former state District Judge John Devine and his court reporter, Karen Friend, changed the character of the monument when they refurbished it in 1995, the majority said in a 24-page opinion.
The opinion upheld a ruling by U.S. District Judge Sim Lake in August 2004 that the monument is an unconstitutional promotion of religion by government. The 5th Circuit Court opinion is at www.ca5.uscourts.gov
Circuit Judge Jerry E. Smith disagreed with the opinion by Judges E. Grady Jolly and Patrick E. Higginbotham, writing in his 15-page dissent that, "The panel majority exhibits an appalling hostility to any hint of religion in public spaces."
Smith disagreed that Devine changed the monument to a religious purpose, saying the judge intended only to "restore that monument to its former glory."
County's next step
Harris County Attorney Mike Stafford said the county has the option of appealing the decision to all 19 members of the 5th Circuit or to the U.S. Supreme Court.
The county will likely ask for an en banc review by the entire 5th Circuit, he said. He said the county's chances of prevailing before the Supreme Court are also good.
"I don't think that the monument's essential nature can morph into something unconstitutional," Stafford said.
Kay Staley, an attorney and real estate broker who successfully sued the county over the Bible's presence, said, "I'm delighted they upheld the Constitution.
"It says we are a country of many religions, and the government should not be promoting one over another," Staley said. "We are not a Christian nation. We are a nation of many religions or no religion."
In his decision, Lake also ordered the county to pay Staley $40,000 in attorney's fees and expenses.
Randall Kallinen, Staley's lawyer, noted that all three judges on the panel were appointed by Republican presidents. "The most conservative appeals court in the United States believes the monument is a violation of the establishment clause and the First Amendment," he said.
Kallinen assailed Stafford and County Judge Robert Eckels for saying that the county would appeal, saying it was an effort to appeal to the far right.
"This is a fundraiser for them," he said of the local officials. "But it's really a waste of taxpayers' money."
The 4-foot-5 monument was erected in 1956 to honor Houston businessman and philanthropist William S. Mosher. A Bible was displayed in a sloping glass case on top of the display.
Changing the display
Jolly, writing for the majority, said that the original purpose of honoring Mosher was secular, but that purpose was changed in 1995 when Devine and Friend placed a neon light inside the monument to outline the Bible.
Devine had campaigned on a platform of putting Christianity back into government and had Christian ministers lead prayers at the rededication ceremony for the monument, the opinion said.
The monument became a rallying point for religious demonstrations after Staley filed her lawsuit in 2003. One was attended by Eckels, Devine and Stafford, who spoke and prayed with Christian ministers, Jolly said.
The Star of Hope Mission maintained the monument until 1988, replacing the Bible several times after it was stolen. The monument was empty from 1988 until 1995.
The mission has resumed maintenance of the monument, although the county pays for electricity for the neon light, $93.16 per year, Jolly said.