Amicus Curiae Brief — The American Legion, et al., Petitioners v. American Humanist Association, et al.

NOS. 17-1717, 18-18

In the Supreme Court of the United States

THE AMERICAN LEGION, et al.,

Petitioners,

v.

AMERICAN HUMANIST ASSOCIATION, et al.,

Respondents.

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION,

Petitioner,

v.

AMERICAN HUMANIST ASSOCIATION, et al.,

Respondents.

On Petitions for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

AMICUS CURIAE BRIEF OF THE AMERICAN CENTER

FOR LAW & JUSTICE IN SUPPORT OF PETITIONERS

FRANCIS J. MANION

GEOFFREY R. SURTEES

AMERICAN CENTER

FOR LAW & JUSTICE

P.O. Box 60

New Hope, KY 40052

(502) 549-7020

JAY ALAN SEKULOW

Counsel of Record

STUART J. ROTH

WALTER M. WEBER

JORDAN SEKULOW

AMERICAN CENTER FOR LAW & JUSTICE

201 Maryland Ave., N.E.

Washington, D.C. 20002

(202) 546-8890

sekulow@aclj.org

EDWARD L. WHITE III

ERIK M. ZIMMERMAN

AMERICAN CENTER

FOR LAW & JUSTICE

3001 Plymouth Road

Suite 203

Ann Arbor, MI 48105

(734) 680-8007

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT AND

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

Van Orden’s Eschewal of Lemon . . . . . . . . . . 3

II.

Disarray of Current Establishment Clause

Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . 6

III.

Town of Greece sets forth the appropriate

test for deciding Establishment Clause

claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. The Historical Foundations Criterion . . 10

B. The Coercion Criterion . . . . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

ii

TABLE OF AUTHORITIES

CASES

American Civil Liberties Union of Ky. v.

Mercer Cnty.,

432 F.3d 624 (6th Cir. 2005) . . . . . . . . . . . . . . 1, 9

ACLU Neb. Found. v. City of Plattsmouth,

419 F.3d 772 (8th Cir. 2005) . . . . . . . . . . . . . . 1, 6

ACLU v. Schundler,

104 F.3d 1435 (3d Cir. 1997) . . . . . . . . . . . . . . . . 4

Am. Atheists, Inc. v. Port Auth.,

760 F.3d 227 (2d. Cir. 2014) . . . . . . . . . . . . . . . . 6

Am. Humanist Ass’n v. Md. Nat’l-Capital Park &

Planning Comm’n,

147 F. Supp. 3d (D. Md. 2015) . . . . . . . . . . . . . . 10

Am. Humanist Ass’n v. Md.-Nat’l Capital Park &

Planning Comm’n,

874 F.3d 195 (4th Cir. 2017) . . . . 3, 14, 15, 18, 19

Am. Jewish Cong. v. Chicago,

827 F.2d 120 (7th Cir. 1987) . . . . . . . . . . . . . . . 19

Books v. City of Elkhart,

235 F.3d 292 (7th Cir. 2000) . . . . . . . . . . . . . . . . 1

Card v. City of Everett,

520 F.3d 1009 (9th Cir. 2008) . . . . . . . . . . . . . . . 7

Comm. for Pub. Educ. & Religious Liberty v.

Regan, 444 U.S. 646 (1980) . . . . . . . . . . . . . . . . . 9

County of Allegheny v. ACLU,

492 U.S. 573 (1989) . . . . . . . . . . 11, 12, 13, 17, 19

iii

Croft v. Perry,

624 F.3d 157 (5th Cir. 2010) . . . . . . . . . . . . . . 8, 9

Cutter v. Wilkinson,

544 U.S. 709 (2005) . . . . . . . . . . . . . . . . . . . . . . . 7

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004) . . . . . . . . . . . . . . . . . . . . . . . . 13

Elmbrook Sch. Dist. v. Doe,

134 S. Ct. 2283 (2014) . . . . . . . . . . . . . . . 9, 12, 20

Felix v. City of Bloomfield,

841 F.3d 848 (10th Cir. 2016) . . . . . . . . . . . . . . . 6

Felix v. City of Bloomfield,

847 F.3d 1214 (10th Cir. 2017) . . . . . . . . . . . . . 21

Freedom from Religion Found., Inc. v. Concord

Cmty. Schs.,

885 F.3d 1038 (7th Cir. 2018) . . . . . . . . . . . . 8, 21

Galloway v. Town of Greece,

681 F.3d 20 (2d Cir. 2012) . . . . . . . . . . . . . . . . . 11

Glassroth v. Moore,

335 F.3d 1282 (11th Cir. 2003) . . . . . . . . . . . . . . 4

Green v. Haskell Cnty. Bd. of Comm’rs,

574 F.3d 1235 (10th Cir. 2009) . . . . . . . . . . . . . . 8

Kondrat’yev v. City of Pensacola,

Case No.: 3:16-cv-195, 2017 U.S. Dist. LEXIS

203588 (N.D. Fla. June 19, 2017),

appeal pending, No. 17-13025 (11th Cir.) . . . . . 10

Lamb’s Chapel v. Center Moriches Union Free

School Dist., 508 U.S. 384 (1993) . . . . . . . . . 1, 10

iv

Larson v. Valente,

456 U.S. 228 (1982) . . . . . . . . . . . . . . . . . . . . . 4, 8

Lee v. Weisman,

505 U.S. 577 (1992) . . . . . . . . . . . . . . . . . 8, 14, 19

Lemon v. Kurtzman,

403 U.S. 602 (1971) . . . . . . . . . . . . . . . . . . passim

Lynch v. Donnelly,

465 U.S. 668 (1984) . . . . . . . . . . . . . 3, 4, 8, 13, 16

Marsh v. Chambers,

463 U.S. 783 (1983) . . . . . . . . . . . . . . . . . . . . 4, 12

Matal v. Tam,

137 S. Ct. 1744 (2017) . . . . . . . . . . . . . . . . . . . . . 1

Mount Soledad Mem’l Ass’n v. Trunk,

567 U.S. 944 (2012) . . . . . . . . . . . . . . . . . . . . . . . 9

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) . . . . . . . . . . . . . . . . . . . . . . . 1

Red River Freethinkers v. City of Fargo,

764 F.3d 948 (8th Cir. 2014) . . . . . . . . . . . . . . . . 7

Rowan Cnty. v. Lund,

No. 17-565, 2018 U.S. LEXIS 4040

(June 28, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Salazar v. Buono,

559 U.S. 700 (2010) . . . . . . . . . . . . . . . . . . . 14, 15

Sch. Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963) . . . . . . . . . . . . . . . . . . . 12, 19

Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs,

788 F.3d 580 (6th Cir. 2015) . . . . . . . . . . . . . 8, 21

v

Soc’y of Separationists v. Pleasant Grove City,

416 F.3d 1239 (10th Cir. 2005) . . . . . . . . . . . . . . 1

Staley v. Harris Cnty.,

461 F.3d 504 (5th Cir. 2006) . . . . . . . . . . . . . . . . 7

Stone v. Graham,

449 U.S. 39 (1980) . . . . . . . . . . . . . . . . . . . . . . . 19

Town of Greece v. Galloway,

134 S. Ct. 1811 (2014) . . . . . . . . . . . . . . . . passim

Trinity Lutheran Church of Columbia, Inc. v.

Comer, 137 S. Ct. 2012 (2017) . . . . . . . . . . . . . . . 1

Trump v. Hawaii,

138 S. Ct. 2392 (2018) . . . . . . . . . . . . . . . . . . . . . 7

Trunk v. City of San Diego,

629 F.3d 1099 (9th Cir. 2011) . . . . . . . . . . . . . . . 7

Trunk v. City of San Diego,

660 F.3d 1091 (9th Cir. 2011) . . . . . . . . . . . . . . 16

Valley Forge Christian College v. Americans United

for Separation of Church & State,

454 U.S. 464 (1982) . . . . . . . . . . . . . . . . . . . . . . 18

Van Orden v. Perry,

351 F.3d 173 (5th Cir. 2003) . . . . . . . . . . . . . . . . 4

Van Orden v. Perry,

545 U.S. 677 (2005) . . . . . . . . . . . . . . . . . . passim

Wallace v. Jaffree,

472 U.S. 38 (1985) . . . . . . . . . . . . . . . . . . . . . . 6, 9

Zubik v. Burwell,

136 S. Ct. 1557 (2016) . . . . . . . . . . . . . . . . . . . . . 1

vi

OTHER AUTHORITIES

Michael McConnell, Religious Freedom at a

Crossroads, 59 U. Chi. L. Rev. 115 (1992) . . . . 13

Eric Rassbach, Town of Greece v. Galloway: The

Establishment Clause and the Rediscovery of

History, 2013-14 Cato Sup. Ct. Rev. 71 . . . . . . 12

J. Story, Commentaries on the Constitution of the

United States, Vol. III, 728 (1833) . . . . . . . . . . . 16

1

INTEREST OF AMICUS1

Amicus, the American Center for Law & Justice

(“ACLJ”), is an organization dedicated to the defense of

constitutional liberties secured by law. ACLJ attorneys

often appear before this Court as counsel for a party,

e.g., Pleasant Grove City v. Summum, 555 U.S. 460

(2009); Lamb’s Chapel v. Center Moriches Union Free

School Dist., 508 U.S. 384 (1993), or amici curiae, e.g.,

Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012 (2017); Matal v. Tam, 137 S. Ct. 1744

(2017); Zubik v. Burwell, 136 S. Ct. 1557 (2016).

In addition, ACLJ has represented numerous local

governments in challenges involving passive displays

both in this Court, Pleasant Grove City v. Summum,

and in the lower courts, e.g., ACLU of Kentucky v.

Mercer County, 432 F.3d 624 (6th Cir. 2005); ACLU

Nebraska Found. v. City of Plattsmouth, 419 F.3d 772

(8th Cir. 2005) (en banc); Soc’y of Separationists v.

Pleasant Grove City, 416 F.3d 1239 (10th Cir. 2005);

Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000).

Amicus therefore has considerable legal expertise in

the subject matter underlying the petitions.

1

Counsel of record for the parties received notice of the intent to

file this brief. Petitioners have given blanket consent for the filing

of amicus briefs and counsel for Respondents has provided written

consent. No counsel for any party in this case authored this brief

in whole or in part. No person or entity aside from Amicus, their

members, or their respective counsel made a monetary

contribution to the preparation or submission of this brief.

2

SUMMARY OF ARGUMENT

AND INTRODUCTION

Relying on this Court’s decision in Lemon v.

Kurtzman, 403 U.S. 602 (1971), and the perceptions of

a “reasonable observer,” the Fourth Circuit has ordered

the removal of a near century-old monument dedicated

to the memory of local soldiers who perished in the

Great War. What is in need of dismantling in this case,

however, is not the memorial at issue, but the

confounding jurisprudence used by the court below in

reaching its erroneous conclusion.

The Fourth Circuit’s rationale and decision conflicts

with this Court’s decisions in Van Orden v. Perry, 545

U.S. 677 (2005), and Town of Greece v. Galloway, 134

S. Ct. 1811 (2014). Despite the fact that those decisions

notably eschewed both Lemon and the “reasonable

observer test” in deciding whether a passive display

and legislative prayer violated the Establishment

Clause, the Fourth Circuit invoked both to dispose of

Bladensburg’s Peace Cross.

This Court should grant the petitions to reaffirm

what it held in Van Orden and to make explicit what it

implicitly held in Town of Greece: the test for adjudging

whether state action that partakes of the religious

violates the Establishment Clause, be it prayer or a

passive display, does not turn on the application of any

prongs of Lemon, including a reasonable observer’s

perceptions of endorsement. Instead, according to those

two decisions, a court should look to relevant historical

practices and understandings and whether the state

action at issue imposes unwarranted governmental

coercion on others. This jurisprudential standard will

not only provide lower courts a more objective

3

benchmark in determining whether a passive display

comports with the Establishment Clause, such as the

one at issue here, it will provide state and local

governments firmer guidance in deciding whether to

keep, alter, or create anew a governmental display that

partakes of the religious. It will reaffirm the important

truth that the Constitution does not “require complete

separation of church and state; it affirmatively

mandates accommodation, not merely tolerance, of all

religions, and forbids hostility toward any.” Lynch v.

Donnelly, 465 U.S. 668, 673 (1984).

The petitions should be granted.

ARGUMENT

I.

Van Orden’s Eschewal of Lemon.

In ruling that the public display of the Peace Cross

violates the Establishment Clause, the Fourth Circuit

decided the case “pursuant to the three-prong test in

Lemon with due consideration given to the factors

outlined in Van Orden.” Am. Humanist Ass’n v. Md.Nat’l Capital Park & Planning Comm’n, 874 F.3d 195,

206 (4th Cir. 2017) (“AHA”). Given the fact that neither

the Van Orden plurality nor Justice Breyer’s

concurrence in that case thought Lemon to be

beneficial, let alone necessary, to evaluating the Texas

Ten Commandments monument, the Fourth Circuit’s

rubric makes little sense. Van Orden has radically

4

undermined, at least with respect to passive displays,

any continuing authority of Lemon.2

In Van Orden, this Court upheld a passive display

of the Ten Commandments on the grounds of the Texas

State Capitol. While the Fifth Circuit used Lemon to

decide that case, holding that that the monolith was

created with a valid secular purpose and did not

impermissibly endorse religion, Van Orden v. Perry,

351 F.3d 173, 180, 182 (5th Cir. 2003), this Court did

not use the Lemon test. In a plurality opinion, Chief

Justice Rehnquist noted that the “test” derived from

Lemon was simply “not useful in dealing with the sort

of passive monument” like the one at issue in that case.

The plurality noted that Lemon and its “prongs” were

described as providing “no more than helpful signposts”

only two years after that decision was handed down,

and the test had only been selectively used by this

Court in deciding challenges under the Establishment

Clause. Van Orden, 545 U.S. at 686 (plurality opinion);

see also Lynch, 465 U.S. at 679 (noting that the Court

did not consider Lemon to be “relevant” in deciding

Marsh v. Chambers, 463 U.S. 783 (1983), or “useful” in

Larson v. Valente, 456 U.S. 228 (1982)).

Instead of applying any part of Lemon’s test to the

Texas monument, and doubting “the fate of the Lemon

2

To be clear, Amicus believes that the monument at issue satisfies

any standard for measuring an Establishment Clause violation,

including the one set forth in Lemon. The gravamen of this brief is

simply that the “much-maligned test” of Lemon should no longer

be retained. ACLU v. Schundler, 104 F.3d 1435, 1440 (3d Cir.

1997); Glassroth v. Moore, 335 F.3d 1282, 1295 (11th Cir. 2003)

(beginning Establishment Clause inquiry with the “obligatory

observation that the Lemon test is often maligned”).

5

test in the larger scheme of Establishment Clause

jurisprudence,” the plurality undertook an “analysis . . .

driven both by the nature of the monument and by our

Nation’s history.” 545 U.S. at 686. Surveying the

country’s legal and cultural heritage, it held that even

though the Ten Commandments are unquestionably

religious, they also have “an undeniable historical

meaning.” Id. at 690.

Based on that dual significance of the

Decalogue—“partaking of both religion and

government”—the plurality ruled that Texas’s display

of the monument, standing among other monuments

“representing the several strands in the State’s

political and legal history,” was consistent with the

demands of the Establishment Clause. Id. at 690-91.

Justice Breyer concurred in the judgment only. Like

the plurality, Justice Breyer did not use Lemon to

evaluate the monolith’s legality. While he opined that

the display might survive the Court’s more formal

Establishment Clause tests, id. at 703 (Breyer, J.,

concurring in the judgment), Justice Breyer preferred

instead to apply “the exercise of legal judgment,” an

analysis that would “reflect and remain faithful to the

underlying purposes of the Clauses, and . . . take

account of context and consequences measured in light

of those purposes.” Id. at 700. Evaluating the

underlying case-specific facts of the case in tandem

with these purposes, Justice Breyer believed that the

Texas display “falls on the permissible side of the

constitutional line.” Id. at 703.

In neither the plurality decision nor Justice Breyer’s

concurrence did a “reasonable observer’s” perceptions

6

of endorsement play any role.3 It was not necessary to

decide whether this reasonable observer thought that

the State of Texas was advocating the Ten

Commandments as a religious code, or a moral code, or

both, or neither. This observer’s feelings of exclusion,

his religious sensibilities, or his thoughts of religious

endorsement at viewing the monument were simply not

considered.

In short, and in direct conflict with the legal

framework used by the court below, Van Orden was

decided without Lemon and the need to invoke any

“reasonable observer.”

II.

Disarray of Current Establishment Clause

Jurisprudence

The Fourth Circuit is not alone in continuing to

apply Lemon after Van Orden in deciding cases

involving passive displays. See, e.g., Am. Atheists, Inc.

v. Port Auth., 760 F.3d 227 (2d. Cir. 2014) (Ground Zero

cross at the National September 11 Museum); Felix v.

City of Bloomfield, 841 F.3d 848 (10th Cir. 2016) (Ten

Commandments monument). The Eighth Circuit, on

the other hand, has adhered to Van Orden. See, e.g.,

ACLU Neb. Found. v. City of Plattsmouth, 419 F.3d

772, 778, n.8 (8th Cir. 2005) (en banc) (“Taking our cue

from Chief Justice Rehnquist’s opinion for the Court

3

The “reasonable observer” standard of the endorsement test—a

modification of the purpose and effects prongs of Lemon—was first

proposed by Justice O’Connor in Wallace v. Jaffree, 472 U.S. 38, 76

(1985) (O’Connor, J., concurring in judgment) (stating that the

relevant issue was whether an “objective observer, acquainted with

the text, legislative history, and implementation of the statute,

would perceive it as a state endorsement of prayer in public

schools”).

7

and Justice Breyer’s concurring opinion in Van Orden,

we do not apply the Lemon test.”); Red River

Freethinkers v. City of Fargo, 764 F.3d 948 (8th Cir.

2014) (same). And in a case involving a public display

of the Bible, the Fifth Circuit focused on both Justice

Breyer’s Van Orden concurrence and the “reasonable

observer” standard—nowhere, as mentioned, found in

Justice Breyer’s opinion itself. See Staley v. Harris

Cnty., 461 F.3d 504 (5th Cir. 2006).

Additionally, the Ninth Circuit has held that while

Lemon “remains the general rule for evaluating

whether an Establishment Clause violation exists,” it

does “not use the Lemon test to determine the

constitutionality of some longstanding plainly religious

displays that convey a historical or secular message in

a nonreligious context.” Card v. City of Everett, 520

F.3d 1009, 1016 (9th Cir. 2008). But subsequent to

Card, in the protracted litigation over the Mount

Soledad Cross, the Ninth Circuit used both Lemon and

Van Orden to adjudicate the case. Trunk v. City of San

Diego, 629 F.3d 1099 (9th Cir. 2011).

Outside the public display context, and given this

Court’s movement away from Lemon in such other

cases, e.g., Cutter v. Wilkinson, 544 U.S. 709, 717, n.6

(2005) (noting, after setting forth the Lemon test, “[w]e

resolve this case on other grounds”), the lower courts

are in disarray as to which Establishment Clause test

to apply, or whether to apply more than one of them.4

4

This Court’s recent Establishment Clause decision in Trump v.

Hawaii, 138 S. Ct. 2392 (2018), continues the trend of not using

Lemon.

8

The Fifth Circuit, for example, has used a “multitest analysis” involving “Larson v. Valente’s no-sectpreference test,” prongs of “the Lemon test,” “Lynch’s

endorsement test,” and a coercion examination under

Lee v. Weisman, 505 U.S. 577 (1992). Croft v. Perry, 624

F.3d 157, 165-69 (5th Cir. 2010).

Recently, the Sixth Circuit “weave[d] together three

main jurisprudential threads” for deciding a case

arising under the Establishment Clause: “the Lemon

test,” “an endorsement analysis,” and “a historical

approach.” Smith v. Jefferson Cnty. Bd. of Sch.

Comm’rs, 788 F.3d 580, 586-87 (6th Cir. 2015).

Earlier this year, the Seventh Circuit noted in a

case involving a public school’s holiday show that this

Court “has employed at least three ways to assess

whether a local governmental body . . . violates the

Establishment Clause: the endorsement, coercion, and

purpose tests.” Freedom from Religion Found., Inc. v.

Concord Cmty. Schs., 885 F.3d 1038, 1045-46 (7th Cir.

2018). Concurring in the judgment in that case, Judge

Easterbrook doubted the correctness of many of those

tests and wrote that, under a proper reading of the

Establishment Clause, “[i]t takes taxation or

compulsory worship to establish a religion; some form

of coercion is essential.” Id. at 1053 (Easterbrook, J.,

concurring in the judgment).

In light of the various and motley frameworks used

by the lower courts in adjudicating Establishment

Clause challenges, it is little wonder that the

jurisprudence in this area has been described as a

“judicial morass,” Green v. Haskell Cnty. Bd. of

Comm’rs, 574 F.3d 1235, 1235 n.1 (10th Cir. 2009)

(Kelly, J., dissenting from denial of rehearing), “rife

9

with confusion,” Croft, 624 F.3d at 165, and as

“Establishment Clause purgatory.” American Civil

Liberties Union of Ky. v. Mercer Cnty., 432 F.3d 624,

636 (6th Cir. 2005).

Indeed, given that numerous past and present

Justices of this Court have opined on the lack of clarity,

the lower courts can hardly be blamed for their

confusion. See, e.g., Rowan Cnty. v. Lund, No. 17-565,

2018 U.S. LEXIS 4040, at *1 (June 28, 2018) (Thomas,

J., dissenting from denial of certiorari, joined by

Gorsuch, J.) (“This Court’s Establishment Clause

jurisprudence is in disarray. Sometimes our precedents

focus on whether a ‘reasonable observer’ would think

that a government practice endorses religion; other

times our precedents focus on whether a government

practice is supported by this country’s history and

tradition.”); Elmbrook Sch. Dist. v. Doe, 134 S. Ct.

2283, 2284 (2014) (Scalia, J., dissenting from denial of

certiorari) (lamenting the “infinitely malleable

standard [that] asks whether governmental action has

the purpose or effect of ‘endorsing’ religion”); Mount

Soledad Mem’l Ass’n v. Trunk, 567 U.S. 944, 944 (2012)

(Alito, J., concurring in the denial of certiorari) (“This

Court’s Establishment Clause jurisprudence is

undoubtedly in need of clarity.”); Wallace v. Jaffree,

472 U.S. 38, 110 (1985) (Rehnquist, J., dissenting)

(“The three-part test [of Lemon] has simply not

provided adequate standards for deciding

Establishment Clause cases, as this Court has slowly

come to realize.”); Comm. for Pub. Educ. & Religious

Liberty v. Regan, 444 U.S. 646, 671 (1980) (Stevens, J.,

dissenting) (criticizing “the sisyphean task of trying to

patch together the blurred, indistinct, and variable

barrier described in Lemon”).

10

In sum, as the district court noted in this very case,

“Establishment Clause jurisprudence is . . . a trial

judge’s nightmare.” Am. Humanist Ass’n v. Md. Nat’lCapital Park & Planning Comm’n, 147 F. Supp. 3d 373,

381 (D. Md. 2015).5 Now is the time for this Court to

relieve the lower courts from their collective bad

dream, laying to rest, once and for all, the recurring

“ghoul” of that nightmare. See Lamb’s Chapel, 508 U.S.

at 398 (Scalia, J., concurring in judgment).

III.

Town of Greece sets forth the appropriate

test for deciding Establishment Clause

claims.

A. The Historical Foundations Criterion

Nine years after this Court’s decision in Van Orden,

and consistent with that decision, the Court in Town of

Greece provided an objective jurisprudential framework

for resolving Establishment Clause challenges such as

the one at issue here. That framework does not involve

the subjective task of discerning whether a reasonable

observer would think the government is endorsing

religion through a public display or other form of state

action, or the application of one or more prongs of the

Lemon test.

In Town of Greece, this Court was presented with

the issue of whether sectarian invocations at the

beginning of town council meetings comported with the

5

See also Kondrat’yev v. City of Pensacola, Case No.: 3:16-cv-195,

2017 U.S. Dist. LEXIS 203588, at *4 (N.D. Fla. June 19, 2017),

appeal pending, No. 17-13025 (11th Cir.) (describing current

Establishment Clause jurisprudence, in case involving a public

display of a cross, as “historically unmoored, confusing, [and]

inconsistent”).

11

Establishment Clause. The Second Circuit reasoned

that because “an objective, reasonable person would

believe that the town’s prayer practice had the effect of

affiliating the town with Christianity,” the council’s

prayers were unconstitutional. Galloway v. Town of

Greece, 681 F.3d 20, 33 (2d Cir. 2012).

In reversing that decision, however, this

Court—like the plurality opinion and Justice Breyer’s

concurrence in Van Orden—did not suggest that the

Second Circuit misapplied Lemon, or any of its prongs,

or that the “reasonable observer” would conclude

differently. In fact, except for being cited once in

dissent, Lemon is nowhere invoked, or even mentioned,

in Town of Greece. 134 S. Ct. at 1841 (Breyer, J.,

dissenting).6 The Court thus dispensed with divining

the mind of a hypothetical “reasonable observer” to

determine endorsement and adopted a different

analytical framework entirely.

Rather, stating that “the Establishment Clause

must be interpreted ‘by reference to historical practices

and understandings,’” 134 S. Ct. at 1819 (quoting

County of Allegheny v. ACLU, 492 U.S. 573, 670 (1989)

(Kennedy, J.)), the Court looked to objective and

historical facts, including the longstanding tradition of

legislative prayer dating back to the founding

generation. The Court held that the line that must be

drawn “between the permissible and the

impermissible” under the Establishment Clause has

nothing to do with the reasonable observer and his

perceptions of endorsement, but instead must be “one

6

The term “reasonable observer” appears once in the plurality, but

only in passing and not as an invocation of the “endorsement test.”

Id. at 1825 (plurality opinion).

12

which accords with history and faithfully reflects the

understanding of the Founding Fathers.” Id. (quoting

Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203,

294 (1963) (Brennan, J., concurring)).

Importantly, Town of Greece nowhere suggests that

its history-based criterion is limited only to the context

of legislative prayer. In fact, the Court made it clear

that its decision in Marsh v. Chambers, 463 U.S. 783

(1983), often described as an “exception” to

Establishment Clause jurisprudence, 134 S. Ct. at

1818, “must not be understood as permitting a practice

that would amount to a constitutional violation if not

for its historical foundation.” Id. at 1819. In other

words, a historical foundation is not a basis for holding

that an otherwise unconstitutional practice or display

should be permitted, but a criterion for determining

their constitutionality in the first place. See Elmbrook

Sch. Dist. v. Doe, 134 S. Ct. 2283, 2284 (2014) (Scalia,

J., dissenting in denial of certiorari) (“Town of Greece

left no doubt that the Establishment Clause must be

interpreted by reference to historical practices and

understandings.”) (internal quotations omitted).7

A historical foundation criterion, however, should

not be “confined to the inquiry into whether the

challenged practice itself is a part of our accepted

traditions dating back to the Founding.” Allegheny, 492

U.S. at 669 (Kennedy, J.). Instead, “[w]hatever test we

7

See also Eric Rassbach, Town of Greece v. Galloway: The

Establishment Clause and the Rediscovery of History, 2013-14 Cato

Sup. Ct. Rev. 71, 84 (noting that, in Town of Greece, the Court has

“introduce[d] a ‘historical override’ to all Establishment Clause

claims,” and “Marsh’s historical analysis trumps the Lemon test,

not the other way around”).

13

choose to apply must permit not only legitimate

practices two centuries old but also any other practices

with no greater potential for an establishment of

religion.” Id. Nowhere in Town of Greece (or in any

other decision, for that matter) does the Court suggest

that only practices engaged in by the founding

generation could withstand an Establishment Clause

challenge. While, for example, the tradition of this

Court’s invocation, “God save the United States and

this Honorable Court,” may not stretch back all the

way back to the founding of the Court, it is nonetheless

a tradition in keeping with the Founders’

understanding of what the Establishment Clause

allows. The same rationale applies to the Pledge of

Allegiance, the National Motto, and Presidential

proclamations and speeches that invoke the Divine.

Town of Greece, 134 S. Ct. at 1825 (plurality opinion);

see also Elk Grove Unified Sch. Dist. v. Newdow, 542

U.S. 1, 25-30 (2004) (Rehnquist, C.J., concurring in the

judgment).8

Finally, Town of Greece’s history criterion is

consistent with this Court’s observations that there is

an “unbroken history of official acknowledgment by all

three branches of government of the role of religion in

American life,” Lynch, 465 U.S. at 674, and that a

“relentless and all-pervasive attempt to exclude

religion from every aspect of public life could itself

8

As Michael McConnell has observed: “The early practice in the

Republic was replete with governmental proclamations and other

actions that endorsed religion in noncoercive ways, without

favoring one sect over another. . . . The Religion Clauses were not

directed against the evil of perceived messages, but of government

power.” Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115,

155 (1992).

14

become inconsistent with the Constitution,” Lee v.

Weisman, 505 U.S. 577, 598 (1992). Justice Scalia’s call

for “an Establishment Clause jurisprudence that is in

accord with our Nation’s past and present practices,

and that can be consistently applied,” also comports

with the approach taken in Town of Greece. Van Orden,

545 U.S. at 692 (Scalia, J., concurring).

Looking at the “nature of the monument” at issue in

this case, Van Orden, 545 U.S. at 686, and the

“historical practices and understandings” of the

undeniable role religion has played in the character

and culture of this country, Town of Greece, 134 S. Ct.

at 1819, it is clear that the Fourth Circuit gravely erred

as a matter of law in holding that Bladensburg Peace

Cross violates the Establishment Clause.

The cross was not erected with the intent to

proclaim Christianity as a government-sanctioned

religion. It was not created to be a center of religious

worship or to honor and praise the Christian faith. The

cross, quite simply but profoundly, was erected “to

honor 49 World War I soldiers” from Prince George’s

County. AHA, 874 F.3d at 200. Indeed, what a plurality

of this Court observed in Salazar v. Buono, 559 U.S.

700 (2010), regarding a similar memorial, with a

similar history, applies with equal force here:

Private citizens put the cross on Sunrise Rock to

commemorate American servicemen who had

died in World War I. Although certainly a

Christian symbol, the cross was not emplaced on

Sunrise Rock to promote a Christian

message. . . . Placement of the cross on

Government-owned land was not an attempt to

set the imprimatur of the state on a particular

15

creed. Rather, those who erected the cross

intended simply to honor our Nation’s fallen

soldiers.

559 U.S. at 715 (Kennedy, J., plurality).

The fact that a cross was chosen as the object to

memorialize the soldiers, instead of a poppy or some

other symbol from World War I, see AHA, 874 F.3d at

207, n.10, does not doom the monument from start, as

the panel below all but suggests. Instead, as was noted

in Buono,

a Latin cross is not merely a reaffirmation of

Christian beliefs. It is a symbol often used to

honor and respect those whose heroic acts, noble

contributions, and patient striving help secure

an honored place in history for this Nation and

its people. . . . It evokes thousands of small

crosses in foreign fields marking the graves of

Americans who fell in battles, battles whose

tragedies are compounded if the fallen are

forgotten.

559 U.S. at 721 (Kennedy, J., plurality).

In fact, it has been a long historical practice in this

country, consistent with the historical understanding

of the Establishment Clause, to use the symbol of the

cross in the context of giving honor to members of the

armed forces. As has been correctly observed, as a

straightforward factual and historical matter:

114 Civil War monuments include a cross; the

fallen in World Wars I and II are memorialized

by thousands of crosses in foreign cemeteries;

Arlington Cemetery is home to three war

16

memorial crosses, and Gettysburg is home to

two more; and military awards often use the

image of a cross to recognize service, such as the

Army’s Distinguished Service Cross, the Navy

Cross, the Air Force Cross, the Distinguished

Flying Cross, and the most famous cross meant

to symbolize sacrifice—the French “Croix de

Guerre.”

Trunk v. City of San Diego, 660 F.3d 1091, 1100 (9th

Cir. 2011) (Bea, J., dissenting from the denial of

rehearing en banc).

Like the Ten Commandments monument at issue in

Van Orden, and the sectarian prayers at issue in Town

of Greece, the Peace Cross partakes of both the

religious and the secular. The cross is not being used to

call attention to the history or importance of

Christianity, but the history and importance of 49 local

soldiers who made the ultimate sacrifice in defense of

their country. By no means is it a “treacherous step

towards establishment of a state church.” Town of

Greece, 134 S. Ct. at 1818; see also Lynch, 465 U.S. at

678 (“‘The real object of the [First] Amendment was . . .

to prevent any national ecclesiastical establishment,

which should give to an hierarchy the exclusive

patronage of the national government.’”) (quoting

J. Story, Commentaries on the Constitution of the

United States, Vol. III, 728 (1833)). And just as courts

should not act as “supervisors and censors of religious

speech” in the context of religious invocations, 134 S.

Ct. at 1822, neither should they act, as did the Fourth

Circuit here, as park supervisors, adjudging the

legitimacy of a public monument that was erected, and

17

is maintained, for an obvious (and laudable) secular

reason.

While Amicus maintains that the monument would

pass constitutional muster under Lemon, and that the

Fourth Circuit was wrong to conclude otherwise, if

Lemon can be so readily applied to order the removal a

longstanding, historical monument such as the Peace

Cross, it is Lemon that must be discarded, not the

monument. Cf. Town of Greece, 134 S. Ct. at 1811 (“A

test that would sweep away what has so long been

settled would create new controversy and begin anew

the very divisions along religious lines that the

Establishment Clause seeks to prevent.”).

B. The Coercion Criterion

Town of Greece did not look solely to historical

practices and understandings in determining the

constitutionality of the challenged prayer practice, but

to an additional factor: coercion. “It is an elemental

First Amendment principle that government may not

coerce its citizens ‘to support or participate in any

religion or its exercise.’” 134 S. Ct. at 1825 (opinion of

Kennedy, J.) (quoting Allegheny, 492 U.S. at 659

(Kennedy, J.)); see also id. (citing Van Orden, 545 U.S.

at 683 (plurality opinion) (recognizing that our

“institutions must not press religious observances upon

their citizens”)).

Though a majority in Town of Greece did not agree

on what type or level of coercion would have to be

present in order to find an Establishment Clause

violation, there would be no need to resolve that issue

in this case because Respondents have not been coerced

18

into doing anything, much less “compelled . . . to

engage in a religious observance.” Id.

Like the plaintiffs in Town of Greece, who “stated

that the prayers gave them offense and made them feel

excluded and disrespected,” id. at 1826, the

Respondents claim that they have come into

“unwelcome direct contact with the Cross” and “are

offended by the prominent government display of the

Cross.” AHA, 874 F.3d at 203. While one of the

individual plaintiffs alleged that he “is personally

offended and feels excluded” by the monument, the

other two individual plaintiffs did not even allege

offense—only that they have come into “unwelcome

contact” with the monument and “object” to it.

Complaint, ¶¶ 6-10, ECF Doc. 1, American Humanist

Ass’n et al. v. Md.-Nat’l Capital Park & Planning

Comm’n, 8:14-cv-00550-DKC.9

“Offense, however, does not equate to coercion.”

Town of Greece, 134 S. Ct. at 1826 (opinion of Kennedy,

J.). Just as “[a]dults often encounter speech they find

disagreeable,” id., so too might they encounter

disagreeable monuments or displays, as Respondents

have here. “[A]n Establishment Clause violation is not

9

For these reasons, the Fourth Circuit erred in holding that

Respondents have Article III standing to press their

Establishment Clause claim. See AHA, 874 F.3d at 203-4. Like the

plaintiffs in Valley Forge Christian College v. Americans United for

Separation of Church & State, Respondents “fail to identify any

personal injury suffered by them as a consequence of the alleged

constitutional error, other than the psychological consequence

presumably produced by observation of conduct with which one

disagrees. That is not an injury sufficient to confer standing under

Art. III, even though the disagreement is phrased in constitutional

terms.” 454 U.S. 464, 485-86 (1982).

19

made out any time a person experiences a sense of

affront from the expression” of views which are

contrary to his own. Id. Indeed, it is difficult to see how

“passive and symbolic” displays create a “risk of

infringement of religious liberty.” Allegheny, 492 U.S.

at 662 (Kennedy, J.). Cases involving public school

children are inapplicable here. See, e.g., Lee v.

Weisman. 545 U.S. at 691 (plurality opinion); Stone v.

Graham, 449 U.S. 39 (1980) (per curiam); Sch. Dist. of

Abington Twp. v. Schempp, 374 U.S. at 203.

Here, Respondents are not forced into participating

in any religious exercise by a passive monument that

they only observe while traveling in the vicinity. AHA,

874 F.3d at 202; see Allegheny, 492 U.S. at 664

(Kennedy, J.) (“Passersby who disagree with the

message conveyed by these displays are free to ignore

them, or even to turn their backs, just as they are free

to do when they disagree with any other form of

government speech.”); see also Am. Jewish Cong. v.

Chicago, 827 F.2d 120, 133 (7th Cir. 1987)

(Easterbrook, J., dissenting) (“The holder of a nickel

need not trust in God, no matter what the coin says,

and need not contribute the nickel (or even three

pence) to a church.”).

The lower court’s Establishment Clause analysis is

therefore not only plainly inconsistent with Town of

Greece’s historical foundations criterion, but its

coercion criterion as well. Indeed, as a practical matter,

why should the plaintiffs in Town of Greece, who

witnessed sectarian prayers at a town council meeting,

and who felt offended thereby, ultimately fail in their

Establishment Clause challenge, while Respondents

here, who come into “unwelcome contact” with a

20

passive Latin cross while driving a car or riding a bike,

prevail? See Complaint, ¶ 6 (noting that Plaintiff Lowe

often passes by the cross when driving his car or riding

his bike). If Town of Greece means what it says, then

the monument in this case can no more violate the

Establishment Clause than the sectarian legislative

prayers in Town of Greece. It strains credulity to

suggest otherwise.

While this Court did not explicitly announce in

Town of Greece the demise of Lemon, including its

endorsement and reasonable observer progeny, the

rationale of Town of Greece, which notably avoided

those rubrics entirely, strongly indicates that they have

now been abrogated. At least two Justices have noted

that they think so. See Elmbrook Sch. Dist., 134 S. Ct.

at 2284 (Scalia, J., dissenting from the denial of

certiorari, joined by Thomas, J.) (“Town of Greece

abandoned the antiquated ‘endorsement test,’ which

formed the basis for the decision below.”). But until this

Court makes a clear and unambiguous announcement,

the lower courts will continue applying the much

maligned test of Lemon, even in the face of Town of

Greece, which did not rely on that decision despite the

obvious and admittedly religious nature of the practice

at issue.

The petitions in this case present a clean vehicle for

this Court to reaffirm what it held in Van Orden and to

make explicit what it held in Town of Greece: Lemon

and the reasonable observer’s perceptions of

endorsement have no role to play in deciding cases

under the Establishment Clause—at least with respect

to passive displays and prayer practices. An express

ruling to that effect will provide much-needed clarity to

21

the courts of appeals. See Concord Cmty. Schs., 885

F.3d at 1045 n.1 (noting that it did “feel free to jettison”

the endorsement test in light of Town of Greece because

the Court in that case did not make it “explicit”);

Jefferson Cnty. Bd. of Sch. Comm’rs, 788 F.3d at 601

(Batchelder, J., concurring in part) (“[N]otwithstanding

Town of Greece’s broad language regarding the test

that properly governs the Establishment Clause . . .

unless and until the Supreme Court explicitly holds

that it has abandoned the Lemon/endorsement test, the

lower courts are bound to continue applying that test in

contexts where the Court has previously employed it”);

see also Felix v. City of Bloomfield, 847 F.3d 1214, 1221

(10th Cir. 2017) (Kelly, J., dissenting from the denial of

rehearing en banc) (noting that “returning to a more

historically-congruent understanding of the

Establishment Clause is the ultimate province of the

Supreme Court”).

CONCLUSION

For the foregoing reasons, Amicus respectfully asks

the Court to grant the petitions.

22

Respectfully submitted,

JAY ALAN SEKULOW

Counsel of Record

STUART J. ROTH

WALTER M. WEBER

JORDAN SEKULOW

AMERICAN CENTER FOR LAW & JUSTICE

201 Maryland Ave., N.E.

Washington, D.C. 20002

(202) 546-8890

sekulow@aclj.org

FRANCIS J. MANION

GEOFFREY R. SURTEES

AMERICAN CENTER FOR LAW & JUSTICE

P.O. Box 60

New Hope, Kentucky 40052

(502) 549-7020

EDWARD L. WHITE III

ERIK M. ZIMMERMAN

AMERICAN CENTER FOR LAW & JUSTICE

3001 Plymouth Road

Suite 203

Ann Arbor, Michigan 48105

(734) 680-8007

Counsel for Amicus Curiae