United States Court of Appeals
`Fifth Circuit
`F I L E D
`June 3, 2003
`
`Charles R. Fulbruge III
`Clerk
`
`REVISED JUNE 6, 2003
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`No. 02-60737
`Summary Calendar
`
`
`JOHN ELLIS BRIGGS,
`
`versus
`STATE OF MISSISSIPPI,
`
`Plaintiff-Appellant,
`
`Defendant-Appellee.
`
`
`Appeal from the United States District Court
`for the Southern District of Mississippi
`
`
`Before GARWOOD, JOLLY and SMITH, Circuit Judges.
`GARWOOD, Circuit Judge:
`Appellant Briggs’s pro se complaint, filed June 29, 2001,
`alleged that Mississippi violated the Establishment Clause of the
`First Amendment by using public property and funds to fly the state
`flag in that the flag’s union or canton square is the Confederate
`battle flag which displays “the St. Andrew’s Cross (or Southern
`Cross), long regarded by many to reflect a particular religious
`heritage,” and this was offensive to Briggs as he was “a Miracle
`Muslim.” The only defendant mentioned in the complaint is the
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`State of Mississippi. The relief requested was that “a just
`inquiry be made to determine whether a religious symbol, namely the
`St. Andrew’s Cross, should be removed from display on public
`property” and that “the State of Mississippi . . . be made to
`compensate me by paying punitive damages not to exceed $77.77
`million (US).”
`The State moved to dismiss on the basis of the Eleventh
`Amendment and because the complaint did not state a constitutional
`violation.
`On November 14, 2001, Briggs, through counsel, filed a
`response to the motion to dismiss.
`On December 19, 2001, Briggs, through counsel, filed a motion
`for leave to amend the complaint. The tendered amended complaint
`names as defendants only the State of Mississippi and “Ronnie
`Musgrove.” The only allegation concerning Musgrove is that he “is
`the governor for the State of Mississippi.” All other allegations
`are as to the state defendant, e.g., “Defendant, State of
`Mississippi, has willfully and maliciously used public property and
`public funds to display a religious symbol, namely, the St.
`Andrew’s (or Southern Cross), long regarded by many to reflect a
`particular religious heritage.” The amended complaint alleges that
`“the display of the St. Andrew’s Cross in the canton of the
`Mississippi State flag is a violation of his [plaintiff’s]
`Constitutional rights.” The relief sought is “a declaratory
`judgment mandating that the religious symbol, namely the St.
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`Andrew’s Cross, be removed from display in public places,” “a
`declaratory judgment mandating that the Defendant, State of
`Mississippi, found to be in violation of the First Amendment,”
`“compensatory damages in the amount not to exceed 77.77 Million
`Dollars,” and reasonable attorney fees and costs.
`On August 12, 2002, the district court entered its memorandum
`opinion and final judgment, granting the State’s motion to dismiss,
`denying Briggs’s motion for leave to amend, and dismissing the
`case.
`
`Discussion
`Briggs appeals, raising three issues.
`
`Eleventh Amendment
`Briggs first argues that the district court erred in
`determining that the Eleventh Amendment barred him from seeking
`damages and equitable relief against Mississippi. We reject that
`contention. Pennhurst State School & Hospital v. Halderman, 104
`S.Ct. 900, 908-09 (1984). As we said in Voisin’s Oyster House,
`Inc. v. Guidry, 799 F.2d 183 (5th Cir. 1986), the Eleventh
`Amendment bars suit against a state or “state entity, as opposed to
`a state official, regardless of whether money damages or injunctive
`relief is sought” and section 1983 does not override the Eleventh
`Amendment.
`
`Establishment Clause
`Second, Briggs argues that the district court erred in holding
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`that Mississippi’s use of the St. Andrew’s Cross on the state flag
`does not constitute a violation of the Establishment Clause.
`The Mississippi state flag indisputably has the Confederate
`battle flag as its union or canton corner or square. See, e.g.,
`Mississippi Division of United Sons v. Ms. NAACP, 774 So.2d 388,
`390 (Miss. 2000) (“While the State Flag is not simply a Confederate
`Battle Flag, the part of the State Flag found objectionable by the
`NAACP and others is the depiction of such Confederate flag in the
`State Flag’s canton corner”). The flag was adopted in 1894, when
`the Mississippi legislature approved the committee report which
`“. . . recommend for the flag one with width two-thirds
`of its length; with the union square , in width two-
`thirds of the width of the flag; the ground of the union
`to be red and broad blue saltier1 thereon, bordered with
`white and emblazoned with thirteen (13) [mullets]2 or
`five-pointed stars, corresponding with the number of the
`original States of the Union; the field to be divided
`into three bars of equal width, the upper one blue, the
`center one white and the lower one, extending the whole
`length of the flag, red-the national colors; the staff
`surmounted with a spear head and a battle-axe below; the
`flag to be fringed with gold and the staff gilded with
`gold.” Id. at 391 (emphasis added).
`However, in 1906 that 1894 legislation adopting the flag was
`
`1Webster’s Third New International Dictionary (1981 Ed.)
`states that “saltier” is the archaic of “saltire” (id. at 2005).
`It defines the adjective “saltire” as “shaped like an X”. Id. For
`the noun “saltire” the first two meanings given are: “. . . 1
`heraldry: an ordinary consisting of a cross formed by a bend dexter
`and a bend sinister crossing in the center of the field 2: an X-
`shaped cross; esp: SAINT ANDREW’S CROSS . . .” Id.
`2See Daniels v. Harrison County Bd. of Supervisors, 722 So.2d
`136, 139 n.1 (Miss. 1998) (Banks, J., concurring).
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`(apparently inadvertently) repealed by the general repeal of all
`laws not included in the then enacted codification. Id.
`Nevertheless the 1894 flag continued to be flown as the state flag
`of Mississippi “by custom and usage.” Id. at 391-92.
`As reflected by, inter alia, the decisions in Mississippi Div.
`of United Sons and Daniels v. Harrison County Bd. of Supervisors,
`722 So.2d 136 (Miss. 1998), the flying of the Confederate Battle
`Flag (alone or as incorporated in the canton square of what was
`assumed to be the official state flag) aroused heated controversy
`between those for whom it “commemorate[d] the sacrifice made in
`support of the cause of the Confederacy” and those for whom it was
`an offensive “symbol of white supremacy” or oppression. Daniels at
`139 (Banks, J., concurring); see also id. at 141. Following the
`decision in Mississippi Div. of United Sons that there was no
`official state flag, the controversy became more active and public.
`In January 2001 the Mississippi Legislature enacted legislation
`providing that the state flag would be determined by an election to
`be held April 17, 2001, at which the voters would choose between
`two described flags, one being the identical 1894 flag and the
`other being a flag similar in all respects to that of 1894 except
`for its canton corner which would consist entirely of a blue ground
`(white bordered on its bottom and fly sides) with a circle of
`thirteen stars containing an inner circle of six stars with one
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`large star in its middle.3 The voters chose the 1894 flag.4
`While nothing in the 1894 legislation or the 2001 legislation,
`and nothing in their legislative histories of which we are aware,
`nor anything in any of the cited decisions of the Mississippi
`courts, refers to the St. Andrew’s Cross, we recognize that the
`Confederate Battle Flag has frequently been described as containing
`a St. Andrew’s Cross. See, e.g., Coleman v. Miller, 885 F.Supp.
`1561, 1564 (N.D. Ga. 1995) (“During the Civil War, the Confederacy
`adopted a square battle flag depicting a blue St. Andrew’s Cross on
`a red field;” with picture of flag). We also recognize that St.
`Andrew is a religious figure, he, along with his brother Peter,
`being one of the twelve apostles of Christ and whose Christian
`ministry is recounted in the New Testament. The connection between
`the emblem on the Confederate Battle flag and St. Andrew is,
`however, another matter. Material attached to Briggs’s complaint
`
`32001 General Laws of Mississippi, Ch. 301.
`4As a result, and as provided in the legislation, § 3-3-16 of
`the Mississippi Code was enacted to read:
`“The official flag of the State of Mississippi shall have
`the following design: with width two-thirds (2/3) of its
`length; with the union (canton) to be square, in width
`two-thirds (2/3) of the width of the flag; the ground of
`the union to be red and a broad blue saltire thereon,
`bordered with white and emblazoned with thirteen (13)
`mullets or five-pointed stars, corresponding with the
`number of the original States of the Union; the field to
`be divided into three (3) bars of equal width, the upper
`one blue, the center one white, and the lower one,
`extending the whole length of the flag, red (the national
`colors); this being the flag adopted by the Mississippi
`Legislature in the 1894 Special Session.”
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`states the following (none of which we dispute):
`“The letter ‘X’ when positioned on its side is commonly
`known as the Cross of St. Andrew and dates back to early
`Christian history.
`As recorded in the Holy Scriptures, Andrew was born in
`the city of Bethsaida on the north shore of Galilee (John
`1:44), but lived in nearby Capernaum (Mark 1:21, 29). He
`worked with his brother Simon Peter as a fisherman. . .
`. Later on, Jesus called both Andrew and his brother
`Simon Peter to leave their fishing business and become
`His disciples (Mark 1:16-18). Andrew became one of the
`twelve apostles of our Lord and was active in the
`establishment of the early Christian Church in Palestine
`(Acts 1:13).
`Tradition says that Andrew was responsible for spreading
`the Christian Faith throughout Asia Minor and Greece.
`For his fervent preaching and testimony of Jesus Christ,
`he was put to death by the Romans when he was around 85
`years old in AD 69 in the city of Patras, Greece by being
`pinned to a cross. At his own request, the cross was
`turned on its side because he felt he was not worthy to
`be crucified like his Lord. . . . Legend says that either
`a Greek monk or an Irish assistant of St. Columba called
`St. Rule was warned in a dream to remove the remains of
`St. Andrew to the ‘ends of the earth’ for safekeeping.
`This he did and was shipwrecked on the east coast of
`Scotland at the location which is now known as St.
`Andrews.
`Another legend says that Acca, the Bishop of Hexham, a
`collector of relics brought the bones of St. Andrew to an
`existing religious center at St. Andrews, Scotland in AD
`733. This became Scotland’s first association with St.
`Andrew. After the battle with the Northumbrians of
`England in AD 832, the Scots adopted him as their patron
`Saint and the saltire as the symbol for their national
`flag. For hundreds of years, brave Scottish warriors
`have fought under this noble banner.
`This same symbol is also known as Jacob’s Cross. It
`represents the blessing of the patriarch Jacob/Israel
`when he crossed his arms and blessed the two sons of
`Joseph (Genesis 48:8-22).
`Around 600 BC, the Greeks designated ‘X’ as the letter
`‘chi’ in their alphabet which in New Testament times came
`to represent Christ. Therefore, the letter X, when used
`alone or in combination with other letters, often stands
`for the word Christ, as in Xmas.” (italics added).
`
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`We are unable to accept, however, that every X, or every X the
`straight-line connection of whose four points would form a square,
`is predominately a religious symbol.5
`We have noted three different tests used to determine whether
`governmental action violates the Establishment Clause. See Freiler
`v. Tangipahoa Parish Bd., 185 F.3d 337, 343 (5th Cir. 1999).
`One of these tests is “the coercion test” which “analyzes
`school-sponsored religious activity in terms of the coercive effect
`that the activity has on students.” Id. That test is facially
`inapplicable here. Moreover, the mere display on public property
`of the state flag, or the use of public funds for that purpose, is
`in no meaningful sense either a religious activity or coercive.
`See, e.g., Coleman v. Miller, 117 F.3d 527 (11th Cir. 1997)
`(Georgia state flag incorporating the Confederate Battle flag);
`N.A.A.C.P. v. Hunt, 891 F.2d 1555 (11th Cir. 1990) (Confederate
`flag flown on Alabama capitol dome); Mississippi Div. of United
`Sons; Daniels. See also, e.g., Murray v. City of Austin, 947 F.2d
`147 (5th Cir. 1991).
`The tests more relevant here are those of Lemon v. Kurtzman,
`
`5Moreover, nothing in the religious aspect of the St. Andrew’s
`Cross consists of anything other than a cross on its side. Neither
`color nor the presence of stars is a part of that. The Scottish
`flag, for example, is a rectangle with a blue field on which is an
`unadorned white cross whose points end at each of the rectangle’s
`corners. The Confederate Battle flag is a square, with a red field
`on which is set a white bordered blue cross reaching each corner of
`the square and containing 13 white stars.
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`91 S.Ct. 2105 (1971), and the “endorsement test.” Freiler at 343.
`Under the former, “a state practice is unconstitutional if (1) it
`lacks a secular purpose; (2) its primary effect either advances or
`inhibits religion; or (3) it excessively entangles government with
`religion.” Id. “[T]he endorsement” test “seeks to determine
`whether the government endorses religion by means of the challenged
`action.” Id.
`Plainly, Lemon’s first prong is fully satisfied here. To the
`extent that a religious symbol–the St. Andrew’s Cross–is displayed,
`it is displayed only insofar as it is included within the
`Confederate Battle flag which forms the union or canton corner of
`the Mississippi state flag. It is obvious–and Briggs does not
`allege otherwise–that at least a purpose of having the Confederate
`Battle flag as the canton corner of the Mississippi state flag is
`and was secular.6 As stated in Hunt, “[i]t is clear that whether
`the [Confederate] flag was hoisted to decry integration or the
`recognize history, the purpose of its hoisting was secular.” Id.
`at 1564. It is similarly clear that Lemon’s third prong–that the
`challenged action not excessively entangle government with
`religion–is likewise satisfied here. As reflected by materials
`attached to Briggs’s complaint, the State of Mississippi did not
`
`6“Lemon’s first prong does not require that challenged state
`action have been enacted in furtherance of exclusively, or even
`predominately, secular objectives.” Freiler at 344. See also,
`e.g., Lynch v. Donnelly, 104 S.Ct. 1355, 1362-63 & n.6 (1984).
`
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`design the Confederate Battle flag. In 1894 (and again in 2001,
`when the State, in essence, declined to change the flag it had
`consistently flown for over a century), Mississippi merely
`prescribed as the canton corner of the State flag the identical
`design which had been created by Confederate generals Beauregard
`and Joseph E. Johnson in 1861, and thereafter had been used by
`Confederate forces throughout the Civil War and became well known
`at least throughout the South. These one time, isolated decisions,
`and the flying of the state flag pursuant thereto, do not
`comprehend, require or lead to any involvement by the government
`with any religious institution or group or any interaction between
`the government and any such institution or group.
`We turn now to the second prong of the Lemon test and to the
`related endorsement test. We have suggested that these tests are
`similar. Freiler at 346. As the Eleventh Circuit stated in
`respect to Alabama’s flying of the Confederate flag “[ i]t is also
`clear that the primary effect of the flag is not to promote
`religion; rather it is to remind citizens, albeit offensively to
`some, of a controversial era in American history.” Hunt at 1564.
`It is common knowledge that public reaction to and the debate over
`the flying of the Confederate Battle flag, or its being a part of
`a state flag, has been virtually exclusively in relation to its
`symbolism of the Confederacy and the valor of its troops and
`whether or to what extent this symbolism extols or excuses slavery,
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`racial oppression or resistance to racial equality. None of this
`concerns any religious symbolism related to any presence of the St.
`Andrew’s Cross in the flag.7 Neither the endorsement test nor the
`second prong of Lemon is violated where any endorsement of or
`benefit to religion by the challenged governmental action is merely
`“indirect, remote, or incidental.” Lynch v. Donnelly 104 S.Ct.
`1355, 1364 (1984) (internal quotation marks omitted). In making
`this determination we focus on the display as an entirety, and on
`its contextual history, not merely on the portion of the display
`claimed to constitute a religious symbol. Lynch at 1360-61, 1364;
`Murray at 154-55. Merely because “some observers may perceive that
`the” government “has aligned itself with the Christian faith by”
`the presence of a St. Andrew’s Cross within the flag does not
`suffice to make out a Lemon or endorsement test violation. Lynch
`at 1364; Capitol Square Review And Advisory Bd. v. Pinette, 115
`S.Ct. 2440, 2455 (1995) (O’Connor, J., concurring) (rejecting view
`that “a religious display is necessarily precluded so long as some
`
`7See, e.g., Coleman v. Miller, 885 F. Supp. 1561, 1569 (N.D.
`Ga. 1995) (concerning the Georgia state flag, adopted in 1956 to
`include the Confederate Battle flag, “[t]o some, it represents the
`undeniable fact that Georgia was a member of the Confederacy and
`did secede from the Union. The flag may also represent southern
`heritage, the old South, or values of independence. Undeniably, to
`others
`it
`represents
`white
`supremacy,
`rebellion,
`and
`discrimination”); Coleman v. Miller, 912 F. Supp. 522, 530 (N.D.
`Ga. 1996), aff’d, 117 F.3d 527, 530 (11th Cir. 1997) (“the Georgia
`flag conveys mixed meanings: to some it honors those who fought in
`the Civil War and to others it flies as a symbol of [racial]
`oppression”); Daniels at 139-40 (Banks, J., concurring);
`Mississippi Div. of United Sons at 390.
`
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`passerby would perceive a governmental endorsement” of religion).
`As Justice O’Connor explained in Capitol Square:
`“. . . the endorsement test creates a more collective
`standard to gauge ‘the “objective” meaning of the
`[government’s] statement in the community,’ Lynch, supra,
`at 690, 104 S.Ct., at 1368 (O’CONNOR, J., concurring).
`In this respect, the applicable observer is similar to
`the ‘reasonable person’ in tort law, who ‘is not to be
`identified with any ordinary individual, who might
`occasionally do unreasonable things,’ but is ‘rather a
`personification of a community ideal of reasonable
`behavior, determined by the [collective] social
`judgment.’ W. Keeton, D. Dobbs, R. Keeton, & D. Owen,
`Prosser and Keeton on Law of Torts 175 (5th ed. 1984).
`Thus, ‘we do not ask whether there is any person who
`could find an endorsement of religion, whether some
`people may be offended by the display, or whether some
`reasonable person might think [the State] endorses
`religion.’ Americans United, 980 F.2d at 1544. . . .
`There is always someone who, with a particular quantum of
`knowledge, reasonably might perceive a particular action
`as an endorsement of religion. A State has not made
`religion relevant to standing in the political community
`simply because a particular viewer of a display might
`feel uncomfortable.
`It is for this reason that the reasonable observer
`in the endorsement inquiry must be deemed aware of the
`history and context of the community and forum in which
`the religious display appears. . . . Nor can the
`knowledge attributed to the reasonable observer be
`limited to the information gleaned simply from viewing
`the challenged display.” Id. at 2455 (O’Connor, J.,
`concurring).
`It is clear to us that, as a matter of law, despite what
`Briggs himself or some others might perceive, the objective meaning
`in the community of Mississippi’s display of its flag is not the
`State’s endorsement of religion or any particular religion, and
`that any endorsement of or benefit to religion from that display is
`at most indirect, remote and incidental. The flag fails neither
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`the second prong of Lemon nor the endorsement test.
`We have held that governmental display of symbols which were
`more obviously and directly religious did not violate the
`Establishment Clause. In Murray we sustained summary judgment
`dismissal of an Establishment Clause claim predicated on Austin’s
`official insignia (displayed on its vehicles, letterhead, uniforms
`and some of its buildings) containing the coat of arms of its
`founder, Stephen F. Austin, which included the Christian cross used
`only by the Roman Catholic denomination and which is in a far more
`unique form than the objected to X form within the Confederate
`Battle flag. See id. at 150, 159.8 See also, e.g., O’Hair v.
`Blumental, 588 F.2d 1144 (5th Cir. 1979), in which we affirmed, on
`the basis of the district court’s opinion, O’Hair v. Blumenthal,
`462 F. Supp. 19 (W.D. Tex. 1978), the grant of a motion to dismiss
`
`8In rejecting the Establishment Clause claim in Murray we
`stated:
`“. . . in considering the Establishment Clause challenge
`to Austin’s insignia, we must recognize the reason for
`the cross originally being in the coat of arms; that
`Austin did not have an improper purpose in adopting the
`insignia; its long and unchallenged use; its non-
`proselytizing effect; that in its context, it does not
`endorse religion in any true or meaningful sense of the
`word “endorsement”; and that requiring the City to remove
`all displays of the insignia, arguably evinces not
`neutrality, but instead hostility, to religion.” Id. at
`158.
`All these factors are present here in favor of Mississippi, and
`indeed the here challenged symbol, to the extent that it is
`religious, is certainly less overtly and obviously so than the
`Christian cross in Murray. See id. at 149, 150, 159.
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`for failure to state a claim of a suit raising an Establishment
`Clause challenge to our national motto “In God We Trust” and its
`appearance on our coins. The same holding was made by the Tenth
`Circuit in Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996).
`We hold that the Mississippi flag does not violate the
`Establishment Clause.
`
`Leave to Amend
`Finally, Briggs asserts that the district court abused its
`discretion in denying his motion for leave to amend his complaint.
`The district court did not abuse its discretion because, for the
`reasons above stated, the proposed amended complaint could not
`survive a FED. R. CIV. P. 12(b)(6) motion and allowing Briggs to
`amend the complaint would be futile. See Lewis v. Fresne, 252 F.2d
`352, 360 n.7 (5th Cir. 2001).9
`AFFIRMED.
`
`9We also note that the proposed amended complaint insofar as
`it named the State of Mississippi as a defendant was still subject
`to dismissal under the Eleventh Amendment. Insofar as the proposed
`amended complaint named Governor Musgrove it fails to allege action
`(or inaction) on his part or any relationship he has or had to the
`flying of the flag.
`
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