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

Supreme Court briefDec 18, 2018

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NOS. 17-1717, 18-18

In the Supreme Court of the United States

THE AMERICAN LEGION, et al.,

Petitioners,

AMERICAN HUMANIST ASSOCIATION, et al.,

Respondents.

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION,

Petitioner,

AMERICAN HUMANIST ASSOCIATION, et al.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF AMICI CURIAE AMERICAN ASSOCIATION

OF CHRISTIAN SCHOOLS, MICHIGAN ASSOCIATION

OF CHRISTIAN SCHOOLS, AND CHRISTIAN

EDUCATORS ASSOCIATION INTERNATIONAL

IN SUPPORT OF PETITIONERS

GREAT LAKES JUSTICE CENTER

WILLIAM WAGNER

Counsel of Record

ERIN ELIZABETH MERSINO

KATHERINE L. HENRY

JOHN S. KANE

5600 W. Mount Hope Hwy-Upper Level

Lansing, MI 48917

(517) 322-3207

Contact@GreatLakesJC.org

Counsel for Amici Curiae

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

QUESTIONS PRESENTED

This case presents three questions: (1) Whether a

93-year-old memorial to the fallen of World War I is

unconstitutional merely because it is shaped like a

cross. (2) Whether the constitutionality of a passive

display incorporating religious symbolism should be

assessed under the tests articulated in Lemon v.

Kurtzman, 403 U.S. 602 (1971), Van Orden v. Perry,

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

S. Ct. 1811 (2014), or some other test. (3) Whether, if

the test from Lemon applies, the expenditure of funds

for routine upkeep and maintenance of a cross-shaped

war memorial, without more, amounts to an excessive

entanglement with religion in violation of the First

Amendment.

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

STATEMENT OF IDENTITY

AND INTEREST OF AMICI CURIAE . . . . . . . . 1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. THE CROSS DOES NOT VIOLATE THE

ESTABLISHMENT CLAUSE. . . . . . . . . . . . . . . 4

A. The Court Should Apply the Plain Meaning

of the Words in the Establishment Clause to

the War Memorial Cross. . . . . . . . . . . . . . . . . 4

B. The Court Should Abandon the Lemon Test.

..................................... 8

1) Lemon Exceeds the Scope of the Judicial

Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2) Lemon Bypasses Constitutionally

Required Processes for Amending the

Constitution . . . . . . . . . . . . . . . . . . . . . . . 12

3) Lemon Undermines the Legitimacy of the

Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . 13

4) L e m o n

Creates

Substantial

Unpredictability in the Law . . . . . . . . . . 15

iii

5) Lemon Fosters Unjustifiable Hostility

Toward Religious Identity . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

TABLE OF AUTHORITIES

CASES

Allegheny Co. v. Greater Pittsburgh ACLU,

492 U.S. 573 (1989) . . . . . . . . . . . . . . 7, 16, 19, 21

Am. Atheists, Inc v. Duncan,

616 F.3d 1145 (10th Cir 2010) . . . . . . . . . . . . . . 19

Am. Humanist Ass’n v. Maryland-National Capital

Park and Planning Comm’n.,

No.15-2597, slip op. (4th Cir. Oct. 18, 2017) . . . 19

Capitol Square Review and Advisory Bd. v. Pinette,

515 U.S. 753 (1995) . . . . . . . . . . . . . . . . . . . . . . . 9

Edwards v. Aguillard,

482 U.S. 578 (1987) . . . . . . . . . . . . . . . . . . . 17, 18

Epperson v. Arkansas,

393 U.S. 97 (1968) . . . . . . . . . . . . . . . . . . . . 17, 18

Gibbons v. Ogden,

9 U.S. (1 Wheat.), 194-95 (1824) . . . . . . . . . . . . 12

Lee v. Weisman,

505 U.S. 577 (1992) . . . . . . . . . . . . . . . . . . . 5, 6, 8

Lemon v. Kurtzman,

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

Lynch v. Donnelly,

465 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . 16

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . 12

Marsh v. Chambers,

463 U.S. 783 (1983) . . . . . . . . . . . . . . . . . . . . . 4, 5

McCreary County v. ACLU,

545 U.S. 844 (2005) . . . . . . . . . . . . . . . . . . . 15, 19

McCulloch v. Maryland,

17 U.S. 316 (1819) . . . . . . . . . . . . . . . . . . . . . . . 12

Nat’l Fed’n of Indep. Bus. v. Sebelius,

132 S. Ct. 2566 (2012) . . . . . . . . . . . . . . . . . . . . 12

Obergefell v. Hodges,

135 S. Ct. 2071 (2015) . . . . . . . . . . . . . . . . . . . . 21

Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000) . . . . . . . . . . . . . . . . . . . . . . 19

Town of Greece v. Galloway,

134 S. Ct. 1811 (2014) . . . . . . . . . . . . . . . . . . . . . 5

Van Orden v. Perry,

545 U.S. 677 (2005) . . . . . . . . . . . . . . . . . . . . . . 15

Wallace v. Jaffree,

472 U.S. 38 (1985) . . . . . . . . . . . . . . . . . . 9, 18, 19

CONSTITUTION

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . 3, 4

U.S. Const. art. I, § 8, cls. 5 . . . . . . . . . . . . . . . . . . 12

U.S. Const. art. I, § 8, cls. 7 . . . . . . . . . . . . . . . . . . 12

U.S. Const. art. I, § 8, cls. 12 . . . . . . . . . . . . . . . . . 12

U.S. Const. art. III, § 2 . . . . . . . . . . . . . . . . . . . . . . 11

U.S. Const. art. V . . . . . . . . . . . . . . . . . . . . . . . . . . 13

OTHER AUTHORITIES

Associated Press, Georgia Seniors Told They Can’t

Pray Before Meals, (May 10, 2010; updated Jan.

6, 2015), https://www.google.com/

amp/s/www.foxnews.com/us/prayers-answeredseniors-can-pray-before-meals-at-georgiacenter.amp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Abraham Lincoln, Emancipation Proclamation,

(Jan. 1, 1863), https://www.archives.gov/

exhibits/featured-documents/ emancipationproclamation/transcript.html . . . . . . . . . . . . . . 14

Michael W. McConnell, Religion and its Relation to

Limited Government, 34 Harv. J.L. & Pub. Pol.

943 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

G. Moens, The Menace of Neutrality in Religion,

2004 BYU L. Rev. 535 (2004) . . . . . . . . . . . . . . 17

Noah Webster, Am. Dictionary Of The English

Language, (1828), at http://webstersdictionary

1828.com/Dictionary/respecting . . . . . . . . . . . . . 6

Noah Webster, Am. Dictionary Of The English

Language, (1828), at http://webstersdictionary

1828.com/Dictionary/establishment . . . . . . . . . . 6

STATEMENT OF IDENTITY

AND INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37, Amici Curiae,

American Association of Christian Schools, Michigan

Association of Christian Schools, and Christian

Educators Association International, submit this brief.1

Committed to Biblical principles and the values of

the Judeo-Christian heritage, Amici Curiae hold a

significant interest in the protection of constitutional

rights, especially religious freedom (including a proper

understanding of the First Amendment limits on the

exercise of government power).

Most pertinent to the matter before this Court,

Amici Curiae support the principle that unelected

judges ought not deviate from the plain meaning of

Constitutional provisions. Amici Curiae care deeply

about the social and legal impact of politicallyunaccountable judicial review that inappropriately

changes the meaning of the Constitution. This is

especially so when unelected judicial bodies invalidate

state action because the action was informed by a

moral purpose. Amici Curiae maintain that Lemon and

its progeny extra-constitutionally permit changeable

political preferences of unelected judges to substitute

Petitioners and Respondents granted blanket consent for the

filing of Amici Curiae briefs in this matter. Amici Curiae further

states that no counsel for any party authored this brief in whole or

in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person or entity, other than the Great Lakes Justice Center, made

a monetary contribution to the preparation or submission of this

Amici Curiae brief.

their politically unaccountable will for politically

accountable governance.

Amici Curiae hold special knowledge helpful to this

Court about the importance of properly applying the

plain meaning of Constitutional provisions like the

Establishment Clause. Amici Curiae file this brief to

encourage this Honorable Court to guide the American

judiciary, and other branches of government, to return

to a sound constitutional basis for state-church

relations.

BACKGROUND

The Bladensburg WWI Memorial is a 40-foot-tall

concrete Christian cross standing on a large pedestal.

The American Legion’s symbol is in the middle of the

cross. The words “VALOR,” “ENDURANCE,”

“COURAGE,” and “DEVOTION” are inscribed at its

base.

The pedestal’s large plaque, states the

monument is “DEDICATED TO THE HEROES OF

PRINCE GEORGE’S COUNTY, MARYLAND WHO

LOST THEIR LIVES IN THE GREAT WAR FOR THE

LIBERTY OF THE WORLD.” The plaque records the

49 local men who died in WWI, indicates dates of

American involvement in the war, and quotes

President Wilson’s address to Congress requesting a

declaration of war.

See generally, Petitioner’s

Appendix 51a – 60a (Am Humanist Assoc v. MarylandNatl Capital Park and Planning Comm, No. DKC 0550,

Memorandum Op. (D.Md)).

Those challenging the war memorial cross contend

that it violates the Establishment Clause.

See

generally, Brief in Opposition, Am. Legion v. Am.

Humanist Ass’n (July 27, 2018) (Supremecourt.gov,

Docket No. 17-1717); Brief in Opposition, MarylandNational Capital Park and Planning Comm’n v. Am.

Humanist Ass’n (Aug. 2, 2018) (Supremecourt.gov,

Docket No. 18-18).

SUMMARY OF THE ARGUMENT

The war memorial cross does not violate the

Establishment Clause. This Court should apply the

plain meaning of the words in the Establishment

Clause in its review of the government action here.

The Establishment Clause simply prohibits federal

laws “respecting an establishment of religion.” U.S.

Const. amend. I. The memorial cross does not establish

a religion. It does not subject the American citizenry to

governance under a theocracy. It does not coerce the

American citizenry, by force of law and penalty, to

practice an official religion. It does not, therefore,

violate the plain meaning of the Establishment Clause.

Amici Curiae additionally urge this Court to

overrule Lemon v. Kurtzman, 403 U.S. 602 (1971)

because it unconstitutionally empowers unelected

judges to supplant our politically accountable system of

governance with their own protean preferences.

Lemon’s judicially contrived secular purpose and

religious endorsement prohibition: 1) exceeds the scope

of judicial power stated in Article III of the

Constitution; 2) bypasses constitutionally required

processes for amending the Constitution;

3) undermines the legitimacy of the judiciary;

4) creates substantial unpredictability in the law; and

5) fosters unjustifiable hostility toward the religious

identity and dignity of innumerable U.S. citizens.

ARGUMENT

I. THE CROSS DOES NOT VIOLATE THE

ESTABLISHMENT CLAUSE.

The First Amendment to the United States

Constitution states: “Congress shall make no law

respecting an establishment of religion, or prohibiting

the free exercise thereof . . . .” U.S. Const. amend. I.

A. The Court Should Apply the Plain Meaning

of the Words in the Establishment Clause

to the War Memorial Cross.

The Constitution is not just a set of guidelines. It is

the framework on which the government and our legal

system are constructed. Its words both create this

Court’s authority and give it definition. Those words

were written quite clearly, by highly qualified

draftsmen, to express a simple meaning. Faithful

adherence to those words is the touchstone for

measuring the fulfillment of this Court’s sacred duty.

Every Justice who takes the oath of office swears to

uphold the Constitution as it is written, not as he or

she would like it to be written. Discerning and

applying the meaning that the Drafters embodied in

the Constitution’s language is this Court’s high calling.

The alternative of making those words mean what

contemporary judges think they should now mean is

the first step on the path to tyranny.

Resolution of the issue before this Court requires a

correct understanding of what the Establishment

Clause means. This Court has long sought to honor

this duty by understanding those meanings in their

historical context. As Chief Justice Burger observed in

Marsh v. Chambers, “historical evidence sheds light not

only on what the draftsmen intended the

Establishment Clause to mean, but also on how they

thought that Clause applied....” 463 U.S. 783, 790

(1983). Reviewing the history of the Clause and its

application, the Marsh Court held that a chaplain

(employed by the government) did not violate the

Establishment Clause by leading a legislature in

prayer. Id. This Court in Greece v. Galloway, 134 S.

Ct. 1811, 1819 (2014), thereafter noted that

Marsh stands for the proposition that it is not

necessary to define the precise boundary of the

Establishment Clause where history shows that

the specific practice is permitted. Any test the

Court adopts must acknowledge a practice that

was accepted by the Framers and has withstood

the critical scrutiny of time and political change.

County of Allegheny, supra, at 670 (opinion of

Kennedy, J.); see also School Dist. of Abington

Township v. Schempp, 374 U. S. 203, 294 (1963)

(Brennan, J., concurring) (“[T]he line we must

draw between the permissible and the

impermissible is one which accords with history

and faithfully reflects the understanding of the

Founding Fathers”).

Similarly, in Lee v. Weisman, 505 U.S. 577, 631

(1992), Justice Scalia, joined by three other justices,

stated that in this search for truth, “the meaning of the

Clause is to be determined by reference to historical

practices and understandings.”

Webster’s 1828 American Dictionary of the English

Language defined respecting as “[r]egarding; having

regard to; relating to,”2 and establishment as “[t]he act

of establishing, founding, ratifying or ordaining.”3

Thus, the plain meaning of the Establishment Clause

is that government should not shackle the consciences

of the people, for whose sake it exists, through a state

religion. The experience of our Founders, which the

Establishment Clause reflects and seeks to save us

from, was aptly delineated by Justice Scalia, dissenting

in Weisman, 505 U.S. at 640-41 (internal citations

omitted):

The coercion that was a hallmark of historical

establishments of religion was coercion of

religious orthodoxy and of financial support by

force of law and threat of penalty. Typically,

attendance at the state church was required;

only clergy of the official church could lawfully

perform sacraments; and dissenters, if tolerated,

faced an array of civil disabilities. Thus, for

example, in the colony of Virginia, where the

Church of England had been established,

ministers were required by law to conform to the

doctrine and rites of the Church of England; and

all persons were required to attend church and

observe the Sabbath, were tithed for the public

Noah Webster, Am. Dictionary Of The English Language, (1828),

at http://webstersdictionary1828.com/Dictionary/respecting, (last

visited Dec. 13, 2018).

Noah Webster, Am. Dictionary Of The English Language, (1828),

at http://webstersdictionary1828.com/Dictionary/establishment,

(last visited Dec. 13, 2018).

support of Anglican ministers, and were taxed

for the costs of building and repairing churches.

Numerous government actions supporting,

acknowledging, and accommodating religion are

considered time-honored practices that are a part of our

nation’s heritage. See, e.g., Allegheny Co. v. Greater

Pittsburgh ACLU, 492 U.S. 573 (1989) (Kennedy J.,

dissenting, joined by Rehnquist J., Scalia J., and White

J.). Properly understood, the “separation of church and

state is not a limitation on churches or religion; it is a

limit on the role of government with respect to churches

and religious life in general.” Michael W. McConnell,

Religion and its Relation to Limited Government, 34

Harv. J.L. & Pub. Pol. 943, 944 (2010).

The memorial cross does not violate the

Establishment Clause because it was not an action

regarding or relating to the act of establishing or

founding of a religion or state church. The memorial

cross does not subject the American citizenry to

governance under a theocracy. Nor does it coerce the

American citizenry, by force of law and penalty, to

practice one official religion to the exclusion of all

others. The memorial cross does not, therefore, violate

the Establishment Clause.4

Under any test no First Amendment Establishment Clause

violation exists. Here the relevant government action concerns

highway safety. Moreover, various memorials about the cross

clearly memorialize veterans. Additionally it is a matter of

historical truth that for ninety years no challenge to the memorial

cross occurred, until now. Indeed, the content, context, and history

of the memorial cross unmistakably evidences, to any reasonable

objective observer, that memorializing the fallen, not endorsement

of Christianity, is the primary effect.

B. The Court Should Abandon the Lemon Test.

This Court’s “religion clause jurisprudence has

become bedeviled (so to speak) by reliance on formulaic

abstractions that are not derived from, but positively

conflict with, our long accepted constitutional

traditions. Foremost among these has been the socalled Lemon test.” Weisman, 505 U.S. at 644 (Scalia,

J., joined by three other Justices, dissenting). The test,

often ignored but not yet overruled by this Court,

regularly continues to receive “well-earned criticism.”

Id. at 644.

In Lemon, the Court replaced the test proscribed by

the Constitution – whether government action

“established” a religion – with a test of its own creation,

whether government action had a secular purpose or

“endorsed” religion. Lemon v. Kurtzman, 403 U.S. 602,

612-13 (1971).

The Court contrived a three-part test, and then

mandated that government action must satisfy all

three elements to comport with the Establishment

Clause:

First, the [government action] must have a

secular [ ] purpose; second, its principal or

primary effect must be one that neither

advances nor inhibits religion; finally, the

[government action] must not foster an excessive

government entanglement with religion.

Id. (internal citations omitted).

A few justices addressed the second prong of the

Lemon test by requiring the government action to not

even symbolically endorse religion. No agreement

existed though, even among those justices, on how to

decide when a government action symbolically

endorsed religion.5

The Lemon Court, in fashioning its test, ignored the

plain meaning of the words in the Clause. When the

Drafters wrote the Establishment Clause, they well

knew the meanings of both “establish” and “endorse.”

For example, Justice O’Connor, concurring in Wallace v. Jaffree

stated:

[W]hether a government activity communicates

endorsement of religion is not a question of simple

historical fact. *** The relevant issue is whether an

objective observer, acquainted with the text, legislative

history, and implementation of the statute, would perceive

it as a state endorsement of [religion].

472 U.S. 38, 76 (1985).

Elsewhere she stated that: “the endorsement test necessarily

focuses upon the perception of a reasonable, informed observer.”

Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753,

773 (1995) (O’connor, J., concurring). Compare Justice O’Connor’s

measure with that of Justice Souter, who opined that he

“attribute[s] these perceptions of the intelligent observer to the

reasonable observer of Establishment Clause analysis…, where I

believe that such reasonable perceptions matter.” Id. at 786.

Likewise, Justice Stevens articulated a less informed “reasonable

person” standard to determine whether an endorsement of religion

exists when addressing the second prong in Lemon:

If a reasonable person could perceive a government

endorsement of religion from a private display, then the

State may not allow its property to be used as a forum for

that display. No less stringent rule can adequately protect

nonadherents from a well-grounded perception that their

sovereign supports a faith to which they do not subscribe.

Id. at 799.

They chose “establish” to express their intent. If they

had meant “endorse,” there is no doubt they would

have used that word. They did not. The Lemon Court

should not have altered the meaning of the

Establishment Clause, and this Court should correct

that error.

Remarkably,

when

determining

the

constitutionality of a government action under Lemon,

the content of the government action is irrelevant.

Instead, the Lemon test requires that a judge make a

subjective assessment as to whether the government

actor had a secular purpose (i.e., the judge may indulge

in relatively unconstrained speculation regarding

another government official’s state of mind, and

subjectively conclude whether the government actor

had a secular purpose). If the judge feels there was not

a secular motive, the judge must hold that the

government action violates the Establishment Clause.

Amici Curiae urge this Court to reverse Lemon

because it extra-constitutionally permits changeable

political preferences of unelected judges to substitute

their politically unaccountable will for the politically

accountable governance guaranteed by the

Constitution.

As analyzed below, Lemon’s “secular purpose” and

“no symbolic endorsement” policies: 1) exceed the scope

of judicial power granted in Article III of the

Constitution; 2) bypass constitutionally required

processes for amending the Constitution; 3) undermine

the legitimacy of the judiciary; 4) create substantial

unpredictability in the law; and 5) foster unjustifiable

hostility toward the religious identity and dignity of

numerous United States citizens.

1) Lemon Exceeds the Scope of the Judicial

Power

Lemon’s test exceeds the scope of judicial power

stated in Article III of the Constitution. In pertinent

part, Article III of the Constitution provides that:

The judicial Power of the United States, shall be

vested in one supreme Court, and in such

inferior Courts as the Congress may from time

to time ordain and establish... (Section 1) The

judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made,

or which shall be made, under their Authority.

...

U.S. Const. art. III, § 2.

The Lemon Court conspicuously failed to identify

any legitimate source of constitutional authority on

which it relied when amending the meaning of the

Establishment Clause. The simple reason the Lemon

Court failed to do so is that no enumerated judicial

power exists for the judiciary to amend the

Constitution.

The Federal Government “is acknowledged by

all, to be one of enumerated powers.” That is,

rather than granting general authority to

perform all the conceivable functions of

government, the Constitution lists, or

enumerates, the Federal Government’s powers.

. . . The enumeration of powers is also a

limitation of powers, because “[t]he enumeration

presupposes something not enumerated.” The

Constitution’s express conferral of some powers

makes clear that it does not grant others. And

the Federal Government “can exercise only the

powers granted to it.”

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566,

2577 (2012) (internal citations omitted) (quoting

McCulloch v. Maryland, 17 U.S. 316, 404-405 (1819));

U.S. Const. art. I, § 8, cls. 5, 7, 12; Gibbons v. Ogden, 9

U.S. (1 Wheat.), 194-95 (1824).

Nothing in Article III empowers the Court to change

or “evolve” the Constitution. Moreover, nothing in

Marbury v. Madison’s ubiquitous assertion that it is

the province of the Court to say what the law is,

empowers the Court to say instead what it prefers the

law to be. 5 U.S. (1 Cranch) 137 (1803).

The Lemon Court, venturing far beyond the scope of

its Article III powers, improperly permits the political

preferences of unelected judges to amend the

Establishment Clause. Lemon rewrites “make no law

respecting an establishment of religion” to instead

require that “every government action have a secular

purpose and not even symbolically endorse religion.”

All because a panel of unelected Justices preferred it

so.

2) Lemon

Bypasses Constitutionally

Required Processes for Amending the

Constitution

In amending the meaning of the words in the

Establishment Clause, Lemon bypassed

constitutionally required political processes that

specifically require involvement of politicallyaccountable state legislatures. Article V of the

Constitution, in pertinent part, provides:

The Congress, whenever two thirds of both

houses shall deem it necessary, shall propose

amendments to this Constitution, or, on the

application of the legislatures of two thirds of

the several states, shall call a convention for

proposing amendments, which, in either case,

shall be valid to all intents and purposes, as part

of this Constitution, when ratified by the

legislatures of three fourths of the several

states, or by conventions in three fourths

thereof, as the one or the other mode of

ratification may be proposed by the

Congress. . . .

U.S. Const. art. V.

Although the judicial branch may hold the power to

say what the provisions of the Constitution mean, that

power does not extend to amending or evolving the

meaning of these provisions. That power is delegated

to the politically accountable branches of government

in Article V. Thus, when Lemon amended the meaning

of the Establishment Clause, it usurped legislative

authority contrary to the express provisions in Article

3) Lemon Undermines the Legitimacy of the

Judiciary

When a court steps beyond its limited duty and

usurps legislative authority, as the Court did in Lemon,

it undermines good governance under the Rule of Law

and its own legitimacy. To test the provisions of a

government action against the Constitution is one

thing; imposing a new meaning on the words of the

Constitution to achieve a judicially preferred outcome

or social policy is another.

Those supporting Lemon wrongly see the

Constitution as an evolving organism, the meaning of

which they believe their office empowers them to

actively manipulate.

They become Platonic

Philosopher Kings, ruling by judicial fiat, unbound by

the constraints of the Constitution’s actual language.

Lemon embeds this tyrannical principle in our

constitutional jurisprudence by allowing judges to

make subjective, ad hoc assessments as to whether a

government actor had a secular purpose or motive.

In this case, Respondents contend the war memorial

cross violates Lemon’s distorted version of the

Establishment Clause. They ask this Court to the

uphold Fourth Circuit’s subjective application of

Lemon’s judge-made doctrine banning government

actions that might symbolically “endorse” religion.

Lemon’s subjective test makes a litigant’s success in

judge-shopping the best indicator of whether a law will

be struck down under the Establishment Clause. This

Court should, therefore, overrule it.

If Lemon’s judicially manufactured doctrine existed

during the Lincoln Administration, the Emancipation

Proclamation would be unconstitutional because

Lincoln expressly invoked “the gracious favor of

Almighty God” in the text of the proclamation.6 And if

Abraham Lincoln, Emancipation Proclamation, (Jan. 1, 1863),

https://www.archives.gov/exhibits/featured-documents/

emancipation-proclamation/transcript.html, (last visited Dec. 13,

2018).

Lemon’s judicially manufactured doctrine applies to

memorial crosses erected for those who died defending

our freedom, then Arlington National Cemetery is also

unconstitutional. Our nation was founded with

numerous such symbols and has survived over two

centuries of them, and there is undeniably no national

religion that has been established by these practices.

4) L e m o n

Creates

Substantial

Unpredictability in the Law

The Lemon test also undermines predictability, a

vital component of good governance under the Rule of

Law. When it comes to judicial review of government

action and the Establishment Clause, the subjective

nature of the Lemon test produces inconsistent judicial

precedents. This inconsistency is inevitable because

judges utilizing Lemon make a personal subjective

assessment as to whether they happen to believe a

government actor had a secular motive or endorsed

religion - rather than looking to the content of the

government action itself.

Inconsistent judicial

precedents lead to unpredictability in the law. The

inconsistent precedents produced by Lemon’s

subjectivist jurisprudence provide no useful guidance

for government officials trying to act constitutionally.

To illustrate, compare two Establishment Clause

cases handed down by this Court on the same day: Van

Orden v. Perry, 545 U.S. 677 (2005) (upholding

government action placing Ten Commandments on

Government property as Constitutional) and McCreary

County v. ACLU, 545 U.S. 844 (2005) (striking down

government action placing Ten Commandments on

government property as unconstitutional).

Four

justices would have upheld both. Four justices would

have struck down both. One justice upheld one and

struck down the other -- applying Lemon’s subjective

standard, finding one symbolically endorsed religion

and the other did not. Compare also, Lynch v.

Donnelly, 465 U.S. 668 (1984) (upholding baby Jesus in

a manger as constitutional) and Allegheny Co. v.

Greater Pittsburgh ACLU, 492 U.S. 573 (1989) (striking

down baby Jesus in a manger as unconstitutional).

If Lemon says the Ten Commandments are both

constitutional and unconstitutional; if Lemon says

displaying baby Jesus in a manger is both

constitutional and unconstitutional, then no

predictability exists for those seeking to conform their

conduct to the law. It also reveals the absurdity of the

doctrine and the potential for its abuse by a politically

motivated judge or activist lawyer. Predictability in

the law is a necessary component of good governance

under the Rule of Law. Lemon replaces predictability

in the law with the “evolving” political preferences of

unelected judges.

5) Lemon Fosters Unjustifiable Hostility

Toward Religious Identity

Finally, Lemon’s judicially contrived test creates

unjustifiable hostility toward the religious identity of

numerous United States citizens. Many United States

citizens seek guidance from their faith in formulating

their public policy positions. Activist lawyers and

politically motivated judges repeatedly use the Lemon

doctrine to denigrate a person’s religious identity.

They do so by requiring religious people to substitute a

purpose informed by their religious conscience for one

founded on secular beliefs or traditions.

Requiring that every government action have a

secular purpose, and not even symbolically endorse

religion, is not only hostile toward a person’s religious

identity, it is an attempt to make that identity

culturally, socially, and politically irrelevant.

Proponents of this secular approach favor it because it

enables judges to nullify unalienable rights. They

assert that everyone can participate in important policy

discussions except those whose identity is informed by

religious viewpoints.

For example, in the State of Louisiana, Darwin’s

theory of evolution was taught in the government

schools. Louisiana passed a law to also accommodate

those with a different theory on the origin of the

universe - creation science.7 On its face, such an effort

embodies the very essence of neutrality. The Court,

however, reached an opposite conclusion in Edwards v.

Aguillard, holding the law unconstitutional because it

lacked a secular purpose and symbolically endorsed

religious ideas. 482 U.S. 578, 583, 592 (1987).

According to Lemon’s revisionist test, to be

constitutionally “neutral,” all laws and other

government action must have a secular purpose and

not even symbolically endorse religion.8 Similarly, in

Epperson v. Arkansas, the State of Arkansas passed a

law regulating the teaching of evolution. 393 U.S. 97

The law prohibited the teaching of the theory of evolution in

public schools unless accompanied by the instruction in creation

science.

For a scholarly discussion of how the neutrality principles

demean religion in the United States, see G. Moens, The Menace

of Neutrality in Religion, 2004 BYU L. Rev. 535, 566-572 (2004).

(1968). The Court began its analysis by declaring that

“[g]overnment in our democracy . . . must be neutral .

. . .” Id. at 103. The Court nevertheless proceeded to

hold that because the law was motivated by a religious

purpose, it violated the Establishment Clause.

Thus, although often couching its analysis in terms

of neutrality, court decisions utilizing Lemon require

secularly informed purposes while prohibiting

religiously informed ones. Descriptive of such an

analysis is Justice O’Connor’s concurring opinion in

Wallace v. Jaffree:

It is not a trivial matter, however, to require

that the legislature manifest a secular purpose

and omit all sectarian endorsements from its

laws ... It reminds government that when it acts

it should do so without endorsing a particular

religious belief or practice that all citizens do not

share.

472 U.S. 38, 75-76 (1985).

It is apparently acceptable, and sufficiently neutral

though, for government to dictate and endorse a

secular belief or practice that all citizens do not share

– even though the secular perspective necessarily

implies a rejection of religious significance.

The implications of decisions like Aguillard and

Epperson are immense. Mandating the irrelevance of

religious identity and God enables judicial

extermination of our unalienable liberty as viewed by

the Framers.

Too many judges and other government authorities

rely on Lemon to diminish religious identity and

conscience. By way of example, senior citizens at a

nursing home in Georgia were prohibited from praying

before they ate their meal. The government said that

because the meals were subsidized by the government,

praying over the meal would be a violation of the

Establishment Clause. Associated Press, Georgia

Seniors Told They Can’t Pray Before Meals, (May 10,

2010; updated Jan. 6, 2015), https://www.google.com/

amp/s/www.foxnews.com/us/prayers-answered-seniorscan-pray-before-meals-at-georgia-center.amp (last

visited Dec. 14, 2018).

Likewise, those whose actions are informed by the

sacred rather than the secular have faced

Establishment Clause challenges for: erecting the Ten

Commandments, McCreary County v. ACLU, 545 U.S.

844 (2005); raising memorials for the fallen, Am.

Atheists, Inc v. Duncan, 616 F.3d 1145 (10th Cir 2010),

Am. Humanist Ass’n v. Maryland-National Capital

Park and Planning Comm’n., No.15-2597, slip op. (4th

Cir. Oct. 18, 2017); engaging in a moment of silence

prior to starting school, Wallace v. Jaffree, 472 U.S. 38

(1985); praying prior to football games, Santa Fe Indep.

Sch. Dist. v. Doe, 530 U.S. 290 (2000); and for

displaying a manger scene at Christmas time,

Allegheny Co. v. Greater Pittsburgh ACLU, 492 U.S.

573 (1989).

Several Justices have recognized how, contrary to

the plain meaning of the Establishment Clause,

Lemon’s judicially contrived test creates unjustifiable

hostility toward the religious identity of numerous

United States citizens:

Government policies of accommodation,

acknowledgment, and support for religion are an

accepted part of our political and cultural

heritage . . . . Rather than requiring government

to avoid any action that acknowledges or aids

religion, the Establishment Clause permits

government some latitude in recognizing and

accommodating the central role religion plays in

our society [citation omitted]. Any approach less

sensitive to our heritage would border on latent

hostility toward religion, as it would require

government in all its multifaceted roles to

acknowledge only the secular, to the exclusion

and so to the detriment of the religious . . . .

When the state encourages religious instruction

. . . it follows the best of our traditions. For it

then respects the religious nature of our people

and accommodates the public service to their

spiritual needs. To hold that it may not would be

to find in the Constitution a requirement that

the government show a callous indifference to

religious groups. That would be preferring those

who believe in no religion over those who do

believe.

***

Neither government nor this Court can or should

ignore the significance of the fact that a vast

portion of our people believe in and worship God

and that many of our legal, political and

personal values derive historically from religious

teachings. Government must inevitably take

cognizance of the existence of religion.

Allegheny, 492 U.S. at 657-659 (Kennedy, J., joined by

Rehnquist, Scalia, and White, J., dissenting). These

Justices correctly recognized that Lemon’s “view of the

Establishment Clause reflects an unjustified hostility

toward religion, a hostility inconsistent with our

history and our precedents.” Id. at 655.

For some legislators who view the world through

their religious identity, God and his Word are real, and

therefore really matter. Obergefell v. Hodges, 135 S.

Ct. 2071 (2015). It is part of who they are. They

understandably oppose devolutionary social

engineering that threatens the health, safety, and

morals of the nation, as viewed through their religious

identity. The government Lemon envisions must shape

public policy informed by secular dogma, without

regard to any religious conscience or moral

considerations. In such a government, wisdom derived

from religious tradition or individual conscience

informed thereby has no place. Under our Constitution

legislators should not have to choose between fidelity to

their religious identity or participating in the

policymaking process. The Lemon test demands that

they do so, invalidating any policy they make that is

informed by their religious identity. Thus, the Lemon

test deprives people of faith of their dignity by telling

them that reliance on their faith while serving in

government is unconstitutional.

Prohibiting a policy simply because it is informed by

ancient sacred tenets prevents thousands of years of

wisdom from informing the public ethic. The idea that

God created humans in His image, and that all human

life has dignity, ended slavery and advanced the rights

of women around the world. Conversely, when

government suppresses religious identity and the free

expression of religious ideals, it often results in tragic

consequences. Secularists such as Stalin murdered

over 42 million people. Mao Zedong murdered over 37

million. Hitler murdered over 20 million. And the list

of atrocities goes on and on where those in power

selectively pick and choose which citizen’s identities it

will arbitrarily censure.

We are, therefore, in the midst of a high-stakes

battle over the character of the American nation. The

extent to which Lemon’s jurisprudence prevails over

the view that the plain meaning of a constitutional

provision governs will determine: 1) whether

unalienable truth, as envisioned in the Declaration of

Independence, will continue to be relevant as an

objective limit on government action; and 2) whether

the judiciary replaces the Framers’ intent with its own

personal social policy views.

Institutional integrity cannot exist without personal

virtue.

Good governance and civic institutional

integrity rest on the virtue of those holding power

within those institutions. Ideas grounded in one’s

religious identity support and nurture this virtue and

should, therefore, always be permitted within the

marketplace of ideas and the policymaking process.

The Lemon test precludes great ideas grounded in one’s

religious identity from entering the policymaking

process. People of faith should not be stripped of their

dignity, religious identity, and conscience in order to

serve in our constitutional republic. That certainly was

not the Framers’ vision.

In summary, judicial crafting of a subjective threeprong “secular purpose” test defining the

Establishment Clause: 1) exceeds the scope of Article

III; 2) bypasses constitutionally required processes for

amending the constitution; 3) undercuts the legitimacy

of the judicial power; 4) creates substantial

unpredictability in the law; and 5) fosters unjustifiable

hostility toward the religious identity and dignity of

numerous U.S. citizens. This Court should, therefore,

overrule Lemon and no longer apply its “secular

purpose / no religious endorsement” test to government

action.

CONCLUSION

Because the cross was not a law establishing a

national religion, the cross did not violate the plain

meaning of the Establishment Clause of the First

Amendment. This Honorable Court should, therefore,

reverse the decision of the appellate court.

It is hubris to deny our heritage. The men and

women who fought in World War I offered up their

lives to preserve the values of liberty, equality, freedom

of speech, and freedom of religion. We enjoy those

blessings because of their sacrifice. Our debt to them

is too vast to be repaid.

Their fellow citizens chose to honor them and the

values they served with a memorial in the shape of a

cross, as was their tradition. It was a sign of the high

honor the living believed that the fallen had earned. In

fact, they knew no higher form of honor than the

symbol of Christ’s sacrifice. We, too, should honor the

choices our forebears made – the choices they made to

serve and the choices they made to honor such service.

Whether we agree with all of their choices is not the

issue. They suffered through that time of sacrifice.

Their survivors rebuilt the nation we now enjoy. They

have earned our respect. Both their sacrifices and

their choices about memorializing their deeds are our

legacy. To deny either of those is to deny who we are –

to believe we can make ourselves ex nihilo. It is hubris.

If some see the memorial as an endorsement of the

values of valor and patriotism, so be it. If some see it

as an endorsement of sacrificial love, so be it. And if

some see it, in part, as an endorsement of the greatest

sacrifice of love that stands at the center of human

history, so be it. It establishes no religion, and neither

the Founders of this Nation nor the Framers of its

Constitution would ever say that it did. They would

surely commend those who erected the memorial as

true Americans, and so should we.

Respectfully submitted,