Suhre v. Haywood County , 131 F.3d 1083 ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICHARD SUHRE,
Plaintiff-Appellant,
v.
HAYWOOD COUNTY, North Carolina,
Defendant-Appellee,
and
No. 97-1457
BOARD OF COMMISSIONERS; THE
MANAGER OF HAYWOOD COUNTY,
NORTH CAROLINA,
Defendants.
THE RUTHERFORD INSTITUTE;
AMERICANS UNITED FOR SEPARATION
OF CHURCH AND STATE,
Amici Curiae.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CA-94-179-1)
Argued: October 1, 1997
Decided: December 12, 1997
Before WILKINSON, Chief Judge, and WILKINS and
LUTTIG, Circuit Judges.
_________________________________________________________________
Reversed and remanded by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judge Wilkins and Judge Luttig joined.
_________________________________________________________________
COUNSEL
ARGUED: Anna Elizabeth Daly, Charlotte, North Carolina, for
Appellant. Jonathan Drew Sasser, MOORE & VAN ALLEN,
P.L.L.C., Raleigh, North Carolina, for Appellee. ON BRIEF: George
Daly, Charlotte, North Carolina, for Appellant. Leon M. Killian, III,
KILLIAN, KERSTEN & PATTON, P.A., Waynesville, North Caro-
lina, for Appellee. Gregory D. Smith, Clarksville, Tennessee; Gregory
N. Hopkins, Huntsville, Alabama, for Amicus Curiae The Rutherford
Institute. Steven K. Green, AMERICANS UNITED FOR SEPARA-
TION OF CHURCH AND STATE, Washington, D.C., for Amicus
Curiae Americans United.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
Richard Suhre, a resident of Haywood County, North Carolina,
asserts that the maintenance of a Ten Commandments display in the
main courtroom of the Haywood County Courthouse violates the
Establishment Clause of the First Amendment. He appeals the district
court's ruling that he lacks standing to pursue this claim either as a
citizen or as a municipal taxpayer. Because we find that Suhre does
have standing as a citizen to press his Establishment Clause claim, we
reverse the district court and remand for further proceedings.
I.
At the heart of this lawsuit is a display located in the main court-
room of Haywood County's Courthouse. On the wall behind the
judge's bench is a marble and plaster bas-relief representation of Lady
Justice blindfolded and holding scales and a sword. She is flanked by
two marble tablets containing an abridged version of the Ten Com-
mandments. The text can be read from the jury box and the front half
of the chamber. The courtroom containing the Ten Commandments
display is used by both the County's Superior and District courts.
Suhre has been a contentious character in Haywood County. He
has been party to a number of legal actions, several of which involved
2
hearings in the main Haywood County courtroom. For example, pro-
ceedings in at least two of the five prosecutions he brought against his
neighbors for violations of the County noise ordinance took place in
this courtroom. A civil suit Suhre filed against the County was dis-
missed in a proceeding he attended in the Ten Commandments court-
room. And Suhre was twice convicted of misdemeanor telephone
harassment in this courtroom.
In addition to providing a forum for judicial business, the main
courtroom also hosts a variety of public and governmental meetings.
The County Commissioners hold their annual public budget hearings
in that courtroom. And Suhre recalls attending at least four other
meetings in the courtroom, including a public hearing on road mainte-
nance, a meeting of the County agricultural department regarding land
use rules, a public meeting about the noise ordinance, and a meeting
held by a candidate for state legislature. Suhre asserts that the court-
room is "a popular place to hold meetings."
An avowed atheist, Suhre claims he is offended and"filled with
revulsion" when he sees the Ten Commandments on the main court-
room wall. He also fears that the presence of the Ten Commandments
skews the application of the law by influencing juries to base their
decisions on religious rather than legal precepts. Though Suhre cannot
say that the presence of the Ten Commandments on the courtroom
wall has caused him to alter his conduct in any way, he avers that
contact with the display causes him distress.
After he unsuccessfully requested that the County remove the Ten
Commandments from the courtroom, Suhre filed this suit pursuant to
42 U.S.C. § 1983 against the Board of Commissioners of Haywood
County, the County Manager, and the Commissioners in their official
capacities. He sought a declaratory judgment that the continued pres-
ence of the Ten Commandments in the courtroom is unconstitutional
and an injunction against maintenance of the tablets on which the
commandments are displayed. He also sought an award of attorneys'
fees. Suit was dismissed against the individual defendants, leaving the
County, through the Board of Commissioners, as the only defendant.
The district court granted the County's motion for summary judg-
ment, holding that Suhre lacked standing either as a citizen or as a
3
municipal taxpayer to challenge the County's display of the Ten
Commandments. Suhre now appeals.
II.
In denying Suhre citizen standing to challenge Haywood County's
Ten Commandments display, the district court reasoned that his
unwelcome direct contact with a state-sponsored religious display did
not satisfy the injury-in-fact requirement for standing. We cannot
agree and hold that Suhre does possess standing as a citizen to pursue
his Establishment Clause claim.* We express no view, however, on
the merits of Suhre's claim.
A.
Like others seeking the aid of the courts, Establishment Clause
plaintiffs satisfy Article III only when they demonstrate that they have
suffered injury in fact that was caused by the conduct they challenge
and is redressable by a judicial decision. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). It has been repeatedly noted
that "the concept of injury for standing purposes is particularly elu-
sive in Establishment Clause cases." Murray v. City of Austin, 947
F.2d 147, 151 (5th Cir. 1991); see also Saladin v. City of
Milledgeville, 812 F.2d 687, 691 (11th Cir. 1987); ACLU v. City of
St. Charles, 794 F.2d 265, 267-68 (7th Cir. 1986); ACLU v. Rabun
County, 698 F.2d 1098, 1102 (11th Cir. 1983). However, as the Con-
stitution establishes no hierarchy of constitutional rights, there is of
course no "`sliding scale' of standing." Valley Forge Christian Col-
lege v. Americans United for Separation of Church and State, Inc.,
454 U.S. 464, 484 (1982).
Nonetheless the standing inquiry in Establishment Clause cases has
been tailored to reflect the kind of injuries Establishment Clause
plaintiffs are likely to suffer. Tort law is solicitous of, among other
things, plaintiffs' physical well-being. Contract law protects plain-
tiffs' business expectations. But the Establishment Clause plaintiff is
not likely to suffer physical injury or pecuniary loss. Rather "the spiri-
_________________________________________________________________
*We do not consider Suhre's alternative theory of municipal taxpayer
standing.
4
tual, value-laden beliefs of the plaintiffs" are often most directly
affected by an alleged establishment of religion. See Rabun County,
698 F.2d at 1102. Accordingly, rules of standing recognize that non-
economic or intangible injury may suffice to make an Establishment
Clause claim justiciable. Valley Forge, 454 U.S. at 486; Smith v.
County of Albemarle, 895 F.2d 953, 955 (4th Cir. 1990).
B.
Religious display cases are an even more particularized subclass of
Establishment Clause standing jurisprudence. The injury that gives
standing to plaintiffs in these cases is that caused by unwelcome
direct contact with a religious display that appears to be endorsed by
the state. Such personal contact with state-sponsored religious sym-
bolism is precisely the injury that was sufficient to confer standing in
School District of Abington v. Schempp, 374 U.S. 203 (1963). There
school children and their parents challenged the Bible reading and
prayer that, pursuant to state law, began each school day. Because the
plaintiffs were "directly affected by the laws and practices against
which their complaints [were] directed," the Court found that they had
standing to pursue their Establishment Clause claim. Id. at 224 n.9.
Schempp thus recognized "a spiritual stake in First Amendment val-
ues sufficient to give standing to raise issues concerning the Estab-
lishment Clause and the Free Exercise Clause" to those persons
directly affected by alleged violations of the First Amendment. See
Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S.
150, 154 (1970) (interpreting Schempp). In Valley Forge the Supreme
Court confirmed that a proper Establishment Clause plaintiff must
allege direct injury, like that experienced by the Schempp plaintiffs,
who "were subjected to unwelcome religious exercises or were forced
to assume special burdens to avoid them." Valley Forge, 454 U.S. at487 n.22 (discussing Schempp).
Thus a mere abstract objection to unconstitutional conduct is not
sufficient to confer standing. As the Court held in Valley Forge, "the
psychological consequence presumably produced by observation of
conduct with which one disagrees . . . is not an injury sufficient to
confer standing under Art. III." Id. at 485. Accordingly, a citizen of
Omaha, Nebraska who finds a religious symbol in the Haywood
County Courthouse to be offensive in the abstract would not have
5
standing to challenge it. The "injury" to our hypothetical Omaha
plaintiff partakes of a generalized grievance, based on nothing more
than each citizen's "shared individuated right to a government that
`shall make no law respecting the establishment of religion.'" Id. at
470. The Supreme Court in Valley Forge could not have been clearer
in its refusal to extend standing to such plaintiffs, fearing that such a
lax standing requirement "would convert the judicial process into `no
more than a vehicle for the vindication of the value interests of con-
cerned bystanders'" or turn the courts "into judicial versions of col-
lege debating forums." Id. at 473 (quoting United States v. SCRAP,
412 U.S. 669, 687 (1973)). However, like Schempp before it, Valley
Forge recognized that direct contact with an unwelcome religious
exercise or display works a personal injury distinct from and in addi-
tion to each citizen's general grievance against unconstitutional gov-
ernment conduct. Plaintiffs were denied standing in Valley Forge
because they had absolutely no personal contact with the alleged
establishment of religion.
Applying Valley Forge, many lower courts have thus premised
standing on the injury that results from unwelcome personal contact
with a state-sponsored religious display. See, e.g., Saladin, 812 F.2d
at 692; Kaplan v. City of Burlington, 891 F.2d 1024, 1027 (2d Cir.
1989). Plaintiffs alleging this injury have had standing to challenge
religious symbolism in city seals and logos, Murray, 947 F.2d at 151;
Foremaster v. City of St. George, 882 F.2d 1485, 1490-91 (10th Cir.
1989); Saladin, 812 F.2d at 692-93, religious-themed holiday dis-
plays, see, e.g., Kaplan, 891 F.2d at 1027, and even a Ten Command-
ments display in a county courthouse, Harvey v. Cobb County, 811
F. Supp. 669, 675 (N.D. Ga.), aff'd, 15 F.3d 1097 (11th Cir. 1994).
The Supreme Court identified the proximity of the plaintiffs to the
conduct they challenged as a critical factual distinction between the
school children in Schempp and the plaintiffs in Valley Forge. "We
simply cannot see," said the Court, "that respondents have alleged an
injury of any kind . . . sufficient to confer standing. Respondents com-
plain of a transfer of property located in Chester County, Pa. The
named plaintiffs reside in Maryland and Virginia. . . . They learned
of the transfer through a news release." Valley Forge, 454 U.S. at
486-87 (footnotes omitted). The circuits have thus recognized that
"[t]he practices of our own community may create a larger psycholog-
6
ical wound than someplace we are just passing through." Washegesic
v. Bloomingdale Public Schools, 33 F.3d 679, 683 (6th Cir. 1994).
Plaintiffs who "are part of the [community where challenged religious
symbolism is located] and are directly affronted by the presence of
[this symbolism]" certainly "have more than an abstract interest in
seeing that [the government] observes the Constitution." Saladin, 812
F.2d at 693. Thus, where there is a personal connection between the
plaintiff and the challenged display in his or her home community,
standing is more likely to lie.
The spiritual affront of unwelcome contact with religious symbol-
ism may also be compounded when the display that causes this dis-
tress is located within a public facility. Religious displays in public
buildings may seem more in the nature of endorsements and may
potentially impair the use of the affected facilities by individuals who
harbor strong objections to a religious message. See Washegesic, 33
F.3d at 682 (recognizing that picture of Jesus Christ in public school
impaired use of school by students and visitors); Hawley v. City of
Cleveland, 773 F.2d 736, 740 (6th Cir. 1985) (recognizing that pres-
ence of sectarian chapel in airport impaired use of airport by passen-
gers). Though individuals offended by a religious display may
continue to utilize the facility in which it is located, their use of the
facility may be compromised by repeated contact with religious views
to which they are unable to subscribe.
C.
The County contends, however, that because Suhre has not
changed his personal conduct on account of the Ten Commandments
display he does not have standing to challenge it. It is true that some
plaintiffs have curtailed their use of a public facility or otherwise
gone out of their way to avoid contact with an offensive display. See,
e.g., Rabun County, 698 F.2d at 1108 (campers avoided using park
where large illuminated cross was located); Jewish War Veterans v.
United States, 695 F. Supp. 3, 9-10 (D.D.C. 1988) (veteran avoided
using facilities of military base where large illuminated cross was
located). Plaintiffs who have actually stopped using a public facility
or altered their daily routine because of state-sponsored religious
symbolism likely satisfy the standing requirement of Article III. But
their injury is conceptually distinct from that caused by unwelcome
7
contact with public religious symbolism; plaintiffs like the campers
in Rabun County or the veteran in Jewish War Veterans have no
direct contact with the offensive display and allege instead that their
use of a public facility has been totally prevented by the presence of
religious symbols there.
The County urges us to hold that an individual may only have
standing to challenge a religious display if he alleges this sort of
injury -- that is, if he has actually changed his behavior in response
to the display. Compare Freedom from Religion Found., Inc. v.
Zielke, 845 F.2d 1463, 1468 (7th Cir. 1988) (denying standing to
challenge Ten Commandments display in a public park to residents
who "concede[d] that they did not alter their behavior in any manner
as a result of the Ten Commandments monument"), with Gonzales v.
North Township, 4 F.3d 1412, 1416 (7th Cir. 1993) (granting standing
to challenge crucifix in public park to residents who "stated that they
avoid the area of the Park near the crucifix"). Under the County's
view, Suhre lacks standing in this case because he has failed to prove
that the religious display has actually caused him to avoid altogether
the Haywood County courthouse. We cannot accept the County's
position. We agree instead with the majority of circuits that have
addressed this question that neither Supreme Court precedent nor
Article III imposes such a change-in-behavior requirement. See, e.g.,
Foremaster, 882 F.2d at 1490-91 (rejecting Seventh Circuit
approach). Such an extraordinary showing of injury, while sufficient,
is not necessary to support standing to bring an Establishment Clause
claim.
In evaluating standing, the Supreme Court has never required that
Establishment Clause plaintiffs take affirmative steps to avoid contact
with challenged displays or religious exercises. The student plaintiffs
in Schempp had the option to leave the classroom during the Bible
reading and prayer they protested. They chose not to assume this spe-
cial burden, yet the Supreme Court readily found that they had stand-
ing to challenge the practice. 374 U.S. at 224 n.9. In Valley Forge
itself, the Court interpreted Schempp to premise standing on the fact
that plaintiffs "were subjected to unwelcome religious exercises or
were forced to assume special burdens to avoid them," 464 U.S. at
487 n.22 (emphasis added), not that they in fact did assume these bur-
dens. Writing for the Court in Valley Forge, Justice Rehnquist distin-
8
guished the abstract grievance of Americans United for Separation of
Church and State from that of the school children in Schempp. But
Valley Forge in no way overruled Schempp's recognition that direct
contact with unwelcome religious symbolism endorsed by the state
"surely suffice[s] to give the parties standing to complain." 374 U.S.
at 224 n.9.
The best proof of our reading of Valley Forge lies in the actions
of the Supreme Court itself. In two religious display cases subsequent
to Valley Forge, Allegheny County v. ACLU, 492 U.S. 573 (1989),
and Lynch v. Donnelly, 465 U.S. 668 (1984), the Court has proceeded
to the merits of the challenges to the displays and found no infirmity
in the standing of plaintiffs alleging direct contact with them. In nei-
ther case was there any indication that the plaintiffs had changed their
conduct to avoid the display, and neither case intimated that this was
a requirement for standing.
Absent Supreme Court direction, we are unwilling to craft a rule
of standing for religious display cases that would effectively add "in-
sult" to the existing "injury" requirement. Compelling plaintiffs to
avoid public schools or buildings is to impose on them a burden that
no citizen should have to shoulder. A public school or county court-
house exists to serve all citizens of a community, whatever their faith
may be. Rules of standing that require plaintiffs to avoid public places
would make religious minorities into outcasts. Forcing an Establish-
ment Clause plaintiff to avoid the display of which he complains in
order to gain standing to challenge it only imposes an extra penalty
on individuals already alleged to be suffering a violation of their con-
stitutional rights. We do not think Article III requires as much.
An avoidance requirement for standing in religious display cases
also has a contrived quality. Take, for example, a plaintiff whose con-
tact with a religious display is optional. In such cases, a plaintiff
might easily enough take a different route to work or stay away from
a particular public building for some special period of time in order
to gain standing to sue. We are not convinced, however, that requiring
Establishment Clause plaintiffs to jump through these sorts of hoops
makes them any more legitimate than the individual who complains
straightforwardly of direct unwelcome contact with a religious dis-
play. As for the plaintiff who does not have any realistic option of
9
avoiding contact, requiring such a person to quit work or to forgo
school attendance or to resist a subpoena in order to gain standing
seems a more onerous burden than Article III requires. Bringing such
Establishment Clause plaintiffs to the verge of civil disobedience
would go beyond what any court has heretofore decreed.
The case law in the circuits after Valley Forge reaffirms the view
that direct contact with a religious display is sufficient and that
changed behavior is not necessary for purposes of standing. In Rabun
County the Eleventh Circuit held that one of the plaintiffs had stand-
ing to challenge a large illuminated cross in a state park solely "be-
cause the cross [was] clearly visible from the porch of his summer
cabin at the religious camp which he directs as well as from the road-
way he must use to reach the camp." 698 F.2d at 1108. This party
alleged no change whatever in his conduct, yet the Eleventh Circuit
found a cognizable injury sufficient to confer standing on the plain-
tiff.
This same view was confirmed in Saladin, where standing to chal-
lenge religious symbolism in the seal of the City of Milledgeville was
found to lie even though plaintiffs did not allege that they had
changed their behavior to avoid exposure to the seal. Standing was
based on the very fact of personal contact with the seal, which was
embossed on proclamations and correspondence from the City to
plaintiffs. 812 F.2d at 692-93. Thus, the court observed, "like Rabun
County and Schempp (and unlike Valley Forge), the [plaintiffs] come
into direct contact with the offensive conduct." Id. at 692. The fact
that the religious content of the seal offended the plaintiffs by "mak[-
ing them] feel like second class citizens" was deemed sufficient injury
to support standing. Id. at 692-93.
In Foremaster, the Tenth Circuit explicitly considered and rejected
the requirement that a plaintiff allege a change in his behavior to gain
standing. 882 F.2d at 1490-91. Like Saladin, that case involved a
challenge to a city seal, specifically the seal of the City of St. George.
Plaintiff claimed that the "visual impact" of the challenged religious
symbol in the seal "ha[d] and continue[d] to greatly offend, intimidate
and affect [him]." Id. Because he thus demonstrated "direct personal
contact with offensive municipal conduct" he had standing, even after
10
Valley Forge, despite the fact that "he did not contend he changed his
behavior." Id. at 1491.
In a case closely analogous to ours, Harvey v. Cobb County, the
plaintiff's Establishment Clause challenge to a courthouse Ten Com-
mandments display was allowed to go forward even though he alleged
no change of behavior. 811 F. Supp. at 675. As the court explained,
"[l]ike the plaintiffs in Schempp who stayed in school, the plaintiff in
Rabun County who continued to operate his summer camp, . . . the
plaintiffs in Saladin who remained in Milledgeville," and we would
add the plaintiff in Foremaster who remained in St. George without
changing his behavior, an Establishment Clause plaintiff who experi-
ences unwelcome direct contact with a religious display "is not
required to change his life" to establish injury for purposes of stand-
ing. 811 F. Supp. at 75. Like these courts, we are satisfied that such
direct contact with the display sets a plaintiff"apart from the general
public and shows that his grievance is not `shared in substantially
equal measure by all or a large class of citizens.'" Id. (citing Warth
v. Seldin, 422 U.S. 490, 499 (1975)).
The case of Bell v. Little Axe Independent School District, 766 F.2d
1391 (10th Cir. 1985), illustrates the soundness of our approach. In
Bell the plaintiffs, parents of public school children, actually had
taken steps to remove their children from the school district alleged
to have violated the Establishment Clause. Id. at 1399. Though they
were ultimately granted standing, these plaintiffs had to contend with
the claim that their self-help had rendered their constitutional claims
moot. Id. A stringent requirement that plaintiffs take steps to cure
their own injury would create mootness problems in many an Estab-
lishment Clause case. We are unwilling to put potential Establishment
Clause plaintiffs to the task of precisely calibrating their reactions to
offensive state-sponsored religious symbolism at the peril of either
reacting too little to have standing or reacting so much that their con-
stitutional claims are deemed moot.
III.
A.
The cognizable injury caused by personal contact with a public
religious display may thus satisfy the injury-in-fact requirement for
11
standing to bring an Establishment Clause case. The plaintiff need not
meet any additional change-in-behavior or avoidance requirement. In
this regard, Suhre has had two kinds of direct contacts with the Ten
Commandments display, both as a user of the courts and as a partici-
pant in local politics and government. First, Suhre comes into contact
with the Ten Commandments display as a customer of the courthouse.
The display is positioned to command the attention of all in the main
courtroom, located as it is directly and prominently behind the judge's
bench. Any participant in judicial proceedings in that courtroom
comes into contact with the Ten Commandments display.
Suhre has been a plaintiff in a civil action and a complaining wit-
ness in numerous suits under the county noise ordinance. In at least
two of these cases he was present in the main Haywood County court-
room. He has also been a defendant in a criminal action for misde-
meanor telephone harassment. Both Suhre's bench trial and jury trial
for telephone harassment took place in the Ten Commandments
courtroom. In Suhre's case, unwelcome contact with the Ten Com-
mandments display has caused him to doubt the fairness of judicial
proceedings in the County. Suhre's atheism became apparent to the
jury when he refused to swear on the Bible. Because the oath he took
was pointedly devoid of any reference to a supreme being, he fears
that he was convicted for violating the Ten Commandments, dis-
played so prominently before the jury.
We reject the County's suggestion that standing to challenge reli-
gious displays in courtrooms should extend no further than the court-
house family -- the judges and employees of the court and the
attorneys who practice before them. These employees and attorneys
have no reason to incur the ire of courthouse authorities by challeng-
ing the display. More broadly, the County's argument overlooks the
fact that the courthouse, like any institution of government, serves not
just those who are privileged to work there but the broader public as
well.
Second, Suhre comes into contact with the Ten Commandments
display as a participant in local government. He attends public meet-
ings in the courtroom on matters of local concern. Deposition testi-
mony indicated that the courtroom is regularly used in this fashion
and that it serves in fact as a sort of municipal auditorium. The Board
12
of Commissioners holds its annual budget meetings in the Ten Com-
mandments courtroom. And Suhre recalls attending four specific
meetings on local issues in this courtroom. He attended a public hear-
ing on road maintenance, a meeting on land use rules held by the
County agricultural department, a public meeting about the noise
ordinance and a campaign meeting sponsored by a candidate for state
office.
These forms of contact are the sort that courts have routinely rec-
ognized as sufficient to establish standing in Establishment Clause
cases. Suhre is a citizen of Haywood County. The display he chal-
lenges is in the main courtroom of Suhre's home community. This
public facility lies at the center of local government, and Suhre must
confront the religious symbolism whenever he enters the courtroom
on either legal or municipal business.
B.
Whatever the extent of Suhre's past contact with the courtroom, the
County objects that he has not demonstrated sufficient likelihood of
future injury to allow him to pursue injunctive relief with respect to
the Ten Commandments display. See City of Los Angeles v. Lyons,
461 U.S. 95, 102-06 (1983) (threat of injury must be"`real and imme-
diate,' not `conjectural' or `hypothetical'").
In Lyons, the Supreme Court held that the likelihood that the plain-
tiff would again be arrested and subjected to a chokehold was too
remote to give him standing to seek an injunction against police arrest
techniques. Lyons complained that he was injured by a single use of
excessive force by the police. The Court explained that Lyons' stand-
ing could only rest on a series of untenable assumptions: not only that
he would have another encounter with the police but also "the incredi-
ble assertion either (1) that all police officers in Los Angeles always
choke any citizen with whom they happen to have an encounter . . .,
or (2) that the City ordered or authorized police officers to act in such
manner." Id. at 105-06. The Court was unwilling to credit those possi-
bilities, but it did reaffirm that past exposure to illegal conduct was
"evidence bearing on `whether there is a real and immediate threat of
repeated injury.'" Id. at 102 (quoting O'Shea v. Littleton, 414 U.S.
488, 496 (1974)). In Adarand Constructors, Inc. v. Pena, the Supreme
13
Court reiterated that the fact of past injury does not alone establish "a
real and immediate threat" of future injury. 515 U.S. 200, 210-11
(1995). But, as the Court had recognized in Lyons, past injury was
probative of likely future injury. A pattern of past participation in the
challenged contract bidding process and the stated intention to partici-
pate in that process in the future combined to give the plaintiff stand-
ing. Id. at 211-12.
Suhre's case is more like Adarand than Lyons. There is evidence
of repeated unwelcome exposure to the Ten Commandments display:
Suhre has demonstrated a pattern of ready resort to the courts to
enforce the county noise ordinance; he has participated in other suits,
both civil and criminal and as both complainant and defendant; he has
attended various public meetings there, including both political gath-
erings and meetings on local legislative issues. These past actions
brought him into contact with the display. As the Supreme Court rec-
ognized in Adarand, Suhre's past experience bears on the likelihood
of imminent future injury. In Suhre's case, that past experience
includes not only many different occasions of contact with the court-
room but many different reasons for the contact as well.
Suhre's standing does not rest on past injury alone. Again, as in
Adarand but unlike in Lyons, Suhre has stated an unmistakeable
intention to participate in future judicial and municipal business at the
courthouse when the occasion arises. Unlike the series of "incredible
assertions" necessary to give Lyons standing, Suhre asserts, quite
plausibly, that the County will in the future hold another public meet-
ing in the Ten Commandments courtroom; that he will be invited to
this meeting as a member of the Haywood County community; and
that he will elect to attend. After the conclusion of this litigation, he
intends to hold a public debate on the positions of the Christian Coali-
tion in the Ten Commandments courtroom. Suhre's future involve-
ment with judicial proceedings also seems to be likely. He has
initiated several lawsuits under the County's noise ordinance and says
he will resume litigation should his neighbors' dogs disturb him
again. The likelihood of barking dogs perturbing Suhre's peace is far
greater than the slim chance that Lyons would again be arrested and
subjected to a chokehold. As in Lyons, one of the above potentialities
alone may not be sufficient for standing to pursue an injunction, but
taken together they evidence "a real and immediate threat of repeated
14
injury" that establishes Suhre's standing to challenge the Ten Com-
mandments display.
IV.
Under our constitutional system, courts have a long tradition of
resolving questions of religious freedom. Some of the claimants that
come to court will not prevail, but a restrictive rule of standing shuts
the door on the meritorious and nonmeritorious alike. Conversely, an
open-ended rule transforms courtrooms into forums for the airing of
abstract debates. As a result, casual or remote contact will not suffice
to establish standing in a religious display case. See Valley Forge, 454
U.S. at 486-87.
For the reasons heretofore expressed, we hold that Suhre's lawsuit
is concrete in character, and that it may proceed. We express no view,
however, on the merits of Suhre's Establishment Clause claim. Dem-
onstrating injury for standing purposes does not guarantee success in
an Establishment Clause action any more than demonstrating physical
injury guarantees success in a tort suit. The task of reviewing the mer-
its of Suhre's claim is for the district court in the first instance. We
thus remand this case to the district court for further proceedings con-
sistent with this opinion.
REVERSED AND REMANDED
15