AMERICAN ATHEISTS INC, et al v. LEVY COUNTY
ORDER GRANTING 47 SUMMARY JUDGMENT. The Clerk shall enter judgment stating, Plaintiffs claims against Defendant are dismissed with prejudice. Signed by JUDGE MARK E WALKER on 12/3/17. (pll)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
AMERICAN ATHEISTS, INC.,
and CHARLES R. SPARROW,
Case No. 1:15cv113-MW/GRJ
ORDER GRANTING SUMMARY JUDGMENT
This case involves claims under the Establishment Clause
and the Equal Protection Clause of the United States Constitution.
Specifically, Plaintiffs challenge the presence of a religious
monument on government property and the denial of their
application to place a secular monument in the same location.
Accordingly, Defendant’s motion for summary judgment, ECF No.
47, is GRANTED.
I. Facts 1
Defendant, Levy County, has its seat of government in
Bronson, Florida. Many of Levy County’s government offices are
located in a single complex in downtown Bronson. Specifically, the
complex houses the Levy County Courthouse in addition to offices
for the Board of County Commissioners, the Clerk of Court, the
Property Appraiser, and the Tax Collector. ECF No. 49-1, at 169.
Furthermore, the complex is flanked by the Supervisor of
Elections’ offices on one side and an administrative building that
houses the State Attorney and Public Defender’s offices on the
other. An aerial photograph of the property is provided below:
Because this Court is ruling on Defendant’s motion for summary
judgment, it “view[s] all evidence and draw[s] all reasonable inferences in favor
of” Plaintiffs. Tana v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
This photograph was taken from Google Maps, a website that “is so
well known and enjoys such broad use that it may have achieved a status akin
Sometime around 1996, a group of donors erected a veterans’
memorial in the courtyard between the Levy County complex and
the adjacent administrative building. ECF No. 48, at 7. The
memorial bears a number of military seals and a block of text
stating “IN MEMORY OF THOSE WHO SERVED OUR
COUNTRY IN ALL WARS.” Id. A flagpole was placed next to the
memorial sometime later. Id. A picture of the memorial and
flagpole, as they stood in June 2009, can be seen below:
ECF No. 51-1.
to Webster’s Dictionary, permitting judicial notice of the accuracy of the site
itself.” Jeffrey Bellin & Andrew G. Ferguson, Trial By Google: Judicial Notice
in the Information Age, 108 Nw. U. L. Rev. 1137, 1176 (2014). Like other courts,
this Court takes judicial notice of the information displayed on Google Maps.
Cf. United States v. Perea-Rey, 680 F.3d 1179, 1182 at n.1 (9th Cir. 2012) (“We
take judicial notice of a Google map and satellite image as a ‘source whose
accuracy cannot reasonably be questioned,’ at least for the purpose of
determining the general location of the home.” (quoting Fed. R. Evid. 201(b))).
Sometime in 2008 or 2009, a member of the public inquired
with Levy County officials about placing a monument to the Ten
Commandments 3 in the same courtyard as the veterans’ memorial.
ECF No. 48, at 7. After researching the legality of such a
placement, the Levy County Attorney concluded that the county
“should adopt neutral guidelines to govern the placement of
private monuments on County property.” Id. at 8. Guidelines were
eventually developed, and the Levy County Board of County
Commissioners (“BOCC”) approved them in a vote. Id.
The first application under the new guidelines came from
Tri-County Pregnancy Center, Inc., (“Tri-County”) 4 in November
2009. Id. at 11. Tri-County’s application was for a six-foot tall, fivefoot wide “display of the Ten Commandments.” ECF No. 50-23, at
1–2. The BOCC approved Tri-County’s application, and the
“The Ten Commandments are undeniably a sacred text in the Jewish
and Christian faiths . . . .” Stone v. Graham, 449 U.S. 39, 41 (1980). “For many
followers, the Commandments represent the literal word of God as spoken to
Moses and repeated to his followers after descending from Mount Sinai.” Van
Orden v. Perry, 545 U.S. 677, 716 (2005) (Stevens, J., dissenting).
Tri-County describes itself as “an outreach ministry of JESUS
monument (“Monument”) was placed in the courtyard next to the
flagpole. 5 ECF No. 48, at 11–13.
The veteran’s memorial, flagpole, and Monument can be
seen in the following picture (from left to right):
ECF No. 51-3.
The parties disagree about how the Monument was unveiled.
Plaintiffs allege that “[t]he Levy County Board of County Commissioners
unveiled the [Monument] through a religious ceremony including prayers and
invocations.” ECF No. 1, at 4. Levy County denies that allegation. ECF No. 20,
at 3. Although the nature of the Monument’s unveiling may be critical for
resolving the merits of Plaintiffs’ claims, it is not material for purposes of this
Court’s analysis of standing. Accordingly, the parties’ factual dispute does not
preclude summary judgment. Nevertheless, there is reason to believe that the
Monument was unveiled through a religious ceremony. Specifically, an article
from a Levy County news source states that the Monument was “blesse[d] and
dedicate[d] by “Rev. Carl Carnegie.” See The Staff, Ten Commandments
[https://perma.cc/XYV5-ERWP]. The article includes a picture of the supposed
dedication, apparently depicting the “wife of [a] Levy County Commissioner”
holding her umbrella over Rev. Carnegie as it rained. Id.
In January 2014, Plaintiff Charles Sparrow applied to place
a monument in the courtyard on behalf of Williston Atheists. 6 ECF
No. 50-1. The monument in question was a “[g]ranite bench
dedicated to citizens of Levy County who are non-believers and
who are not represented by the Ten Commandments monument.”
Id. at 1. The Levy County Attorney prepared a staff report noting
that Sparrow’s application failed to comply with the county’s
monument-placement guidelines. ECF No. 48, at 15. The BOCC
later denied the application. Id. at 16.
In March 2014, Sparrow submitted an “appeal and amended
monument placement application.” ECF No. 50-5. This time the
application was filed on behalf of both Williston Atheists and
Plaintiff American Atheists, Inc. (“American Atheists”). 7 Id. at 1.
Once again, the Levy County Attorney prepared a staff report
noting defects in the application. ECF No. 48, at 16–18. And the
BOCC once again denied the application. Id. at 18. Subsequently,
Plaintiffs filed this lawsuit. ECF No. 1.
Williston Atheists is an unincorporated “group of atheists” that meets
to “share information about what’s going on in . . . the secular community.”
ECF No. 49-3, at 16–25.
American Atheists is “a membership organization dedicated to
advancing and preserving the complete separation of church and state.” ECF
No. 1, at 3.
II. Plaintiffs’ Claims
Plaintiffs’ complaint is no paragon of clarity. See ECF No. 1.
Despite Plaintiffs’ failure to enumerate a single count, this Court
discerns two claims from the complaint. First, Plaintiffs claim that
the presence of the Monument in the Levy County courtyard
violates the Establishment Clause of the First Amendment to the
United States Constitution. See id. at 5. Second, Plaintiffs claim
that Levy County’s denial of Plaintiffs’ appeal and amended
monument placement application violates the Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution. 8 See id. at 6. For both of these violations, Plaintiffs
seek declaratory relief, injunctive relief, and nominal damages. See
id. at 5–7.
Plaintiffs’ claims are also based on the Florida Constitution. See ECF
No. 1. But “the Florida Constitution’s Establishment Clause is duplicative in
many respects of the Federal Constitution’s Establishment Clause.” Atheists of
Fla., Inc. v. City of Lakeland, 779 F. Supp. 2d 1330, 1341 (M.D. Fla. 2011).
Similarly, “[a]lthough federal cases are not controlling as to whether Florida’s
Equal Protection Clause is violated, they are ‘relevant and persuasive.’” Club
Car Rentals of Gainesville, Inc. v. City of Gainesville¸ No. GCA 85-0177-MMP,
1988 WL 294258, at *3 n.2 (N.D. Fla. May 6, 1988) (quoting Osterndorf v.
Turner, 426 So. 2d 539, 543 (Fla. 1982)). Neither party has argued that the
standing analysis should be any different under the Florida Constitution, and
this Court concludes there is no difference.
A. The Establishment Clause Claim
Before this Court can consider the merits of Plaintiffs’ claim,
this Court must first determine whether Plaintiffs have standing.
Standing is the “irreducible constitutional minimum” necessary to
make a justiciable “case” or “controversy” under Article III, Section
2, of the United States Constitution. Lujan v. Defs. of Wildlife, 504
U.S. 555, 559–60 (1992). To have standing, a plaintiff must prove
that (1) he suffered an “injury in fact,” (2) the injury is causally
connected to the defendant’s conduct, and (3) the injury is “likely”
to be “redressed by a favorable decision” of the court. Id. at 560–
61. This Court finds that Plaintiffs have failed to meet the injuryin-fact requirement because Mr. Sparrow is unlikely to encounter
the Monument in the future and because his only encounter with
the Monument in the past was during a purposeful visit.
1. Sparrow’s Future Injury
Courts have struggled with deciding what types of injuries
are sufficient to confer standing upon persons aggrieved by
religious displays. See Saladin v. City of Milledgeville, 812 F.2d
687, 691 (11th Cir. 1987) (“[T]he concept of injury for standing
purposes is particularly elusive in Establishment Clause cases.”).
The Supreme Court has cautioned that, although “standing may
be predicated on noneconomic injury,” it is not enough for a
presumably produced by observation of conduct with which one
disagrees.” Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 485–87 (1982).
Consequently, courts usually require that a plaintiff have “direct
and unwelcome personal contact” with a religious display. See
Freedom From Religion Found. Inc v. New Kensington Arnold Sch.
Dist., 832 F.3d 469, 476 (3d Cir. 2016) (“Nearly every court of
appeals has held that standing in this context ‘requires only direct
and unwelcome personal contact with the alleged establishment of
religion.’”); see also Saladin, 812 F.2d at 693 (“[A] non-economic
injury which results from a party’s being subjected to unwelcome
religious statements can support a standing claim, so long as the
parties are ‘directly affected by the laws and practices against
whom their complaints are directed.’” (quoting Sch. Dist. v
Schempp, 374 U.S. 203, 224 n.9 (1963))).
In his deposition, Mr. Sparrow stated unequivocally that he
does not “have any requirements in the foreseeable future that
would require [him] to go [to the Levy County complex].” ECF No.
49-3, at 43. The record does not even support an inference that
Sparrow might have to go to the complex. At the time of Sparrow’s
deposition (August 10, 2016), Sparrow had not visited the complex
in over two years. 9 Id. at 37. The only reason he had visited two
years prior was to attend a BOCC hearing about the denial of his
monument-placement application. Id. at 38. Sparrow cannot even
remember when he visited the complex before then. Id.
To be fair, Sparrow does remember doing certain things at
the complex. For instance, he has been “to get tags, registration,
collect brochures for hunting and fishing information,” “to renew a
disabled parking permit,” and to pay a traffic ticket. 10 Id. at 38, 46.
But Sparrow readily admits that he does not expect to conduct
such activities again in the future. That is, he stopped going in
person to renew his car tag and registration because he now does
it “by mail.” Id. at 40. There is no indication that he will need to
collect more brochures. See id. at 38–41. He has no need to renew
his disabled parking permit because “the condition that required
[him] to have a disabled permit . . . corrected itself.” Id. at 39. And
Nothing in the record suggests that Sparrow stopped going to the Levy
County complex because of the Monument.
At his deposition, Sparrow was asked twice if there are other things
that brought him to the Levy County complex within the previous five years,
and he did not identify any additional activities. ECF No. 49-3, at 41–42.
he does not anticipate getting any more traffic tickets. See id. at
Of course, it is entirely possible that Sparrow might return
to the Levy County complex. 11 But mere possibility is not enough.
To have an injury in fact, a plaintiff must show that his alleged
harm is “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (quoting Los
Angeles v. Lyons, 461 U.S. 95, 101–02 (1983)). The record before
this Court barely provides for the inference that Sparrow could
hypothetically visit the complex, let alone that he will do so
imminently. Sparrow’s failure to provide evidence indicating a
future visit to the complex is fatal to his claims for prospective
relief. See Wooden v. Bd. of Regents, 247 F.3d 1262, 1283 (11th Cir.
2001) (“[T]o have standing to obtain forward-looking relief, a
Quite frankly, this Court is baffled by Plaintiffs’ counsel’s failure to
develop the record in this regard. Sparrow could have easily established
standing by stating that he intends to return to the complex (e.g., to attend
BOCC hearings, to look up property records, to observe court proceedings).
Counsel’s failure to develop these facts is certainly not for lack of opportunity.
See ECF No. 27 (extending discovery period); ECF No. 31 (extending discovery
period); ECF No. 35 (extending discovery period); ECF No. 38 (extending
pretrial deadlines); ECF No. 40 (extending pretrial deadlines); ECF No. 53
(extending time to respond to motion for summary judgment and explaining
that “this Court wants a fully developed record and fully develop[ed]
arguments.”); ECF No. 56 (extending time to respond to motion for summary
judgment); ECF No. 58 (extending time to respond to motion for summary
plaintiff must show a sufficient likelihood that he will be affected
by the allegedly unlawful conduct in the future.”); Am. Humanist
Ass’n, Inc. v. Douglas Cty. Sch. Dist. RE-1, 859 F.3d 1243, 1254–
55 (10th Cir. 2017) (holding that plaintiff lacked standing for
prospective relief in Establishment Clause case because any future
injury to the plaintiff was not “certainly impending”).
2. Mr. Sparrow’s Past Injury
Unlike a claim for prospective relief, a claim for retrospective
relief can be based solely on past injuries. See, e.g., New
Kensington, 832 F.3d at 478 n.7 (“The risk of future contact is only
relevant to the question of whether there is standing to seek
injunctive and declaratory relief, and it does not factor into our
analysis of whether there is standing to pursue nominal
damages.”). Here, Plaintiffs seek retrospective relief in the form of
a declaratory judgment and nominal damages. ECF No. 1, at 5, 7.
So, as long as Mr. Sparrow can prove that he had direct and
unwelcome personal contact with the Monument at least once in
the past, Plaintiffs should (in theory) 12 have standing. Cf. United
Several courts have allowed Establishment Clause cases to proceed
even when the only viable claim is one for nominal damages based on past
injuries. See, e.g., Douglas Cty., 859 F.3d at 1253–54. But the Eleventh Circuit
has recently cast a dark shadow over plaintiffs who want to raise claims for
nominal damages. See Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs,
States v. SCRAP, 412 U.S. 669, 689 n.14 (1973) (“[A]n identifiable
trifle is enough for standing to fight out a question of principle . . .
.” (quotation omitted)).
Despite being a relatively low hurdle to clear, Sparrow has
failed to satisfy the “direct and unwelcome personal contact”
standard. Sparrow knows he has seen the Monument, but he does
not remember when that was. ECF No. 49-3, at 42–43. Nor does
Sparrow remember why he was at the Levy County complex when
he saw the Monument. Id. at 43. In fact, Sparrow admitted that he
might have gone to the complex for the specific purpose of seeing
the Monument. Id.
868 F.3d 1248 (11th Cir. 2017) (en banc). To be clear, the circumstances of
Flanigan’s are distinguishable from this case. But some of the majority
opinion’s statements give this Court pause. For instance, the majority opinion
opens with the statement that “a prayer for nominal damages, by itself, is
insufficient to satisfy Article III’s jurisdictional requirements.” Id. at 1253.
This statement would seem to preclude Mr. Sparrow from pursuing his
nominal damages claim given that he does not have standing to seek other
relief. But, as the dissent in Flanigan’s notes, “[t]he majority’s holding is, at
best, undermined and, at worst, contradicted by its footnotes.” Id. at 1272.
(Wilson, J., dissenting, joined by Martin, Jordan, Rosenbaum, and Jill Pryor,
JJ.). Indeed, despite the above-quoted opening statement, the majority later
states that its holding “does not foreclose the exercise of jurisdiction in all cases
where a plaintiff claims only nominal damages.” Id. at 1263, n. 12. Whatever
the holding may be, this Court need not make meaning of these inconsistencies
because there is an alternative ground to deny standing as to Mr. Sparrow’s
alleged past injury.
Of course, there is no way of knowing for sure whether
Sparrow purposefully visited the Monument. 13 And this Court
must “draw all reasonable inferences in favor” of Plaintiffs here.
Tana, 611 F.3d at 772. But the only reasonable inference that can
be drawn from the undisputed facts is that Sparrow purposefully
visited the Monument. Indeed, several facts in the record support
For instance, there’s a sworn declaration from Jim Jones, the
Levy County Construction & Maintenance Director, stating that
the “main and only public entrance to the Levy County
[complex] . . . is on the far end of the [complex] from the
[Monument], approximately 208 feet away.” ECF No. 51, at 2. Mr.
Jones explained that the Monument “is not visible from the
entrance” to the complex and that the Monument “is not readily
visible” from either of the two main roads through Bronson. Id.
Moreover, the area where the Monument is located is primarily
To be clear, this is not a disputed issue of fact. This Court understands
that if Sparrow had provided conflicting explanations of why he saw the
Monument then this Court would need to hold a hearing and make a credibility
determination. Cf. ACLU of Fla., Inc. v. Dixie County, 690 F.3d 1244, 1250
(11th Cir. 2012). But Sparrow has not offered conflicting explanations; he has
only explained that he doesn’t remember why he saw the Monument. ECF No.
49-3, at 42–43. Indeed, during his deposition, Sparrow repeatedly emphasized
that his memory is lacking. See, e.g., id. at 8 (“My memory, not that it was ever
that good, it’s just not that good at all.”).
used by state attorneys and public defenders walking between
their offices and the courthouse. See ECF No. 49-1, at 21. Nothing
in the record suggests that Mr. Sparrow visited, or would have
reason to visit, the state attorneys’ or public defenders’ offices.
The Supreme Court has explained that a plaintiff’s “claim
that the Government has violated the Establishment Clause does
not provide a special license to roam the country in search of
governmental wrongdoing and to reveal [his] discoveries in federal
court.” Valley Forge, 454 U.S. at 487. Any injury in this context
would be contrived, and “[t]he Supreme Court has declined to find
standing in contrived circumstances,” Ctr. for Powell Crossing,
LLC v. Ebersole, 696 F. App’x 702, 705 (6th Cir. 2017)
(unpublished) (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398,
415 (2013)). For this reason, courts have held that a plaintiff does
not have standing to bring an Establishment Clause claim against
a monument that the plaintiff purposefully encountered. 14
See Am. Atheists, Inc. v. Thompson, No. CIV-14-42-C, 2015 WL
1061137, at *1 (W.D. Okla. Mar. 10, 2015) (“Plaintiff Breeze’s testimony was
clear that she went out of her way to find the monument. Indeed, the location
of the monument in relation to the capitol building and Plaintiff Breeze’s use
of that building would require her to walk around the capitol to find the
monument. For this reason, assuming that she did see the monument in
January of 2014, that act would not, in and of itself, establish standing . . . .”).
See also Ala. Freethought Ass’n v. Moore, 893 F. Supp. 1522, 1535 n.26 (N.D.
Ala. 1995) (“This court cannot understand how voluntary exposure to
Likewise, in this case, Mr. Sparrow does not have standing
for his alleged past injury because he admitted that the only time
he saw the Monument might have been during a purposeful visit
and the undisputed evidence 15 suggests that the only way Mr.
Sparrow could have encountered the Monument was if he
purposefully visited it. Moreover, since American Atheists’s
purportedly offensive conduct can establish standing to obtain an injunction
barring such conduct. To recognize standing in such circumstances would be to
allow a plaintiff to ‘manufacture’ her standing. Such a clever machination (or
is it masochism), if recognized as legitimate, would make a mockery of the
longstanding judicial interpretation of Article III’s ‘case or controversy’
requirement.”); but cf. Mark Eichelman, Ringling Brothers on Trial: Circus
Elephants and the Endangered Species Act, 16 Animal L. 153, 161 (2009)
(“‘Manufacturing’ implies a disingenuous or opportunistic creation of a
situation in order to establish standing. Ultimately, this is a factual
determination for the district court to make based on the plaintiff’s motives
and sincerity and the totality of the circumstances. While truly manufactured
standing should not be allowed, the Alabama Freethought decision should not
be read as an outright prohibition on voluntary exposure to potential injury. A
plaintiff should not have to curtail his lawful voluntary behavior so as to avoid
exposure to a defendant’s unlawful behavior. To hold otherwise would limit
standing to those plaintiffs who are involuntarily exposed to future injury, and
no court has made such a bold assertion.”).
Plaintiffs do not dispute the evidence about the visibility and location
of the Monument in relation to the rest of the complex. Nor do Plaintiffs dispute
that the area where the Monument is located is mainly used by state attorneys
and public defenders. In short, there are no credibility or factual
determinations for this Court to make as to standing. Instead, this Court is
simply faced with Sparrow’s poor memory, Sparrow’s admission that he might
have purposefully visited the Monument, and undisputed facts that suggest
Sparrow purposefully visited the Monument. Accordingly, the only reasonable
inference to be drawn in this case is that Plaintiff purposefully visited the
standing is predicated entirely on Mr. Sparrow’s activities, it too
lacks standing. 16
B. The Equal Protection Claim
As with Plaintiffs’ Establishment Clause claim, this Court
first considers the issue of standing before addressing the merits
of Plaintiffs’ Equal Protection claim. And, once again, this Court
concludes that Plaintiffs lack standing. But this time it’s not
because they failed to show an injury. Rather, Plaintiffs lack
standing because they have failed to show redressability.
An organization can assert standing in different ways. See Alumni
Cruises, LLC v. Carnival Corp., 987 F. Supp. 2d 1290, 1300 (S.D. Fla. 2013)
(explaining the difference between “organizational standing” and
“associational standing”). American Atheists has been less than clear as to
what type of standing it is asserting. Compare ECF No. 1, at 3 (“American
Atheists brings this action to assert the First Amendment rights of its
members.”), with ECF No. 50-21, at 2 (“Plaintiffs American Atheists, Inc. and
Charles Ray Sparrow are both persons with standing to sue under the
applicable legal standards. Plaintiffs do not agree that they must rely on other
persons or entities in order to establish standing to sue.”). Either way, there is
no evidence to suggest that American Atheists has organizational standing (at
least not with respect to the Establishment Clause claim). Accordingly,
American Atheists must demonstrate that it has associational standing, which
requires it to show that “at least one of its members would have standing to
bring an individual claim regarding the challenged practice.” Alumni Cruises,
987 F. Supp. 2d at 1300. Although American Atheists may have a number of
members in Levy County (indeed Mr. Sparrow’s deposition testimony
suggested there might be quite a few), the only member American Atheists has
specifically identified and provided evidence of is Mr. Sparrow. See ECF No. 1;
ECF No. 50-21, at 2; ECF No. 60. As such, American Atheists’s standing for
the Establishment Clause claim hinges entirely on whether Mr. Sparrow has
standing. It is not this Court’s job to develop the record and create standing for
“Several federal courts, including the Eleventh Circuit, have
recently concluded that a plaintiff challenging a sign ordinance
cannot demonstrate redressability if the plaintiff's permit
applications violate unchallenged provisions of the ordinance.”
Roma Outdoor Creations, Inc. v. City of Cumming, 599 F. Supp. 2d
1332, 1340 (N.D. Ga. 2009); see also KH Outdoor, L.L.C. v. Clay
County, 482 F.3d 1299, 1303 (11th Cir. 2007) (“Any injury KH
Outdoor actually suffered from the billboard and offsite sign
prohibition is not redressible because the applications failed to
meet the requirements of other statutes and regulations not
challenged.”). This reasoning applies here too. That is, even if this
Court finds that one or more of the reasons why Plaintiffs’
application was denied was unconstitutional, Plaintiffs are still
without redress if there were constitutional reasons to deny their
As outlined in the Levy County Attorney’s staff report,
Plaintiffs’ monument-placement application suffered from several
For example, if one of the requirements in Levy County’s guidelines
was that monuments can be no taller than two feet, but Plaintiffs applied for
a fifty-foot tall monument, the fact that other guideline requirements were
unconstitutional or had been unconstitutionally applied would be irrelevant
because either way Plaintiffs’ monument would fail to meet the height
deficiencies. See ECF No. 50-36, at 3–11. For instance, the
guidelines require that monuments “include the reproduction of
the entire text or image of any document or person(s)” that they
portray, ECF No. 50-22, at 2, but Plaintiffs’ proposed monument
included several excerpts, ECF No. 50-5, at 3. 18 The guidelines also
require that the texts and images included on monuments “played
a significant role in the development, origins or foundations of
American or Florida law, or Levy County.” ECF No. 50-22, at 2.
But Plaintiffs’ application failed to adequately explain how each of
their proposed quotes met that requirement. ECF No. 50-5.
Of course, both of the above-mentioned requirements involve
a certain element of discretion. And Plaintiffs argue that Levy
County applied these requirements in an unfair manner by
treating Tri-County’s application more favorably than Plaintiffs’
application. Indeed, reasonable minds could differ as to whether
the Ten Commandments meet the entire-text and significant-role
One of Plaintiffs’ proposed quotes was not even a complete sentence.
ECF No. 50-5, at 3 (excerpting “As the Government of the United States of
America is not, in any sense, founded on the Christian religion . . .” from the
Treaty of Tripoli). Other quotes were single sentences excerpted from lengthy
texts. See id.
But some of the requirements in the guidelines involve no
discretion whatsoever. For example, the guidelines require that
organizational applicants “maintain an office and provide services
in Levy County,” id. at 1, and that all applicants insure and
indemnify Levy County from claims relating to their monument,
id. at 3. Plaintiffs undeniably failed to meet these neutral
requirements. 19 Moreover, Plaintiffs do not argue, and there is no
evidence to suggest, that Levy County applied these neutral
requirements any differently to Tri-County. 20 Plaintiffs’ failure to
satisfy these unchallenged (or not-reasonably-challengeable)
requirements means their claim is not redressable.
To be clear, the fact that Plaintiffs don’t have standing here
does not mean that they can never place a monument in the Levy
Williston Atheists is not a legally recognized entity. ECF No. 49-3, at
16–17. As such, it cannot indemnify or insure Levy County. See, e.g., I.W.
Phillips & Co. v. Hall, 128 So. 635, 637 (Fla. 1930); Guyton v. Howard, 525 So.
2d 948, 956 (Fla. 1st DCA 1988). Although American Atheists is incorporated
in New Jersey, it is not registered to do business in Florida and there is no
evidence to suggest that it provides services in Levy County. See ECF No. 491, at 151; ECF No. 50-36, at 5. Additionally, it is undisputed that American
Atheists does not maintain an office in Levy County. ECF No. 49-2, at 13, 48.
Indeed, Tri-County clearly satisfied the requirements. Tri-County is
incorporated in Florida. ECF No. 49-1, at 42–43. Tri-County maintains an
office in Levy County. See ECF No. 50-23, at 1. And Tri-County provides
services in Levy County. See Tri-County Pregnancy Ctr., Services Offered,
County courtyard. Neither the guidelines nor Levy County’s
interpretation of the guidelines prohibit an unsuccessful applicant
from filing subsequent new applications. ECF No. 50-22; ECF No.
50-36, at 6. And maybe if Plaintiffs try a little harder their next
application will be accepted. But it’s doubtful that’s what Plaintiffs
really want. See Dep. of Mr. Sparrow, ECF No. 49-3, at 144 (“I don’t
want to put a monument on the courthouse lawn. The atheists
don’t want a monument there.”). Rather, like with their
Establishment Clause claim, it seems that the only reason
Plaintiffs filed these applications was to hastily manufacture
standing. Indeed, when given an opportunity to file their amended
application, Plaintiffs chose to argue about the guidelines instead
of attempting to comply with them. 21 See ECF No 50-5, at 1–2, 7.
Of course, one might argue that the entire guidelines were made with
a sinister purpose in mind, and therefore trying to comply with them would be
useless. That is, if Plaintiffs believed that Levy County intentionally crafted
the guidelines to only allow religious monuments and keep out secular
monuments, then Plaintiffs would not necessarily have to try to comply with
those guidelines to bring their claim. But there is no evidence in the record to
suggest that this is such a case. The guidelines were developed approximately
five years before Mr. Sparrow expressed interest in having a secular
monument placed in the courtyard. Moreover, there is no evidence in the record
from which a jury could conclude that requiring insurance and indemnity
agreements or requiring organizations to have offices in Levy County impacts
religious applicants any differently than it would impact secular applicants.
Plaintiffs brought a challenge to a religious monument that
they’re unlikely to visit in the future and only visited once in the
past during a purposeful visit. Plaintiffs also challenged the denial
of an application that did not comply with the applicable
guidelines. Had counsel for Plaintiffs devoted more thought to
these issues, then perhaps this Court could have addressed the
merits of this dispute. But counsel didn’t, so this case must be
dismissed for lack of standing.
IT IS ORDERED:
1. Defendant’s motion for summary judgment, ECF No. 47,
2. The Clerk shall enter judgment stating, “Plaintiffs’
claims against Defendant are dismissed with prejudice.”
3. The Clerk shall close the file.
SO ORDERED on December 3, 2017.
s/Mark E. Walker
United States District Judge
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