Amicus Curiae Brief — Van Orden v. Perry

a

Supreme: Court, U.S

FILED

se JUL 6 - 2004

i 4y

No 03-1500 OFFICE OF THE CLERK

nnn ee

IN THE

Supreme Court of the Gnited States

THOMAS VAN ORDEN,

Petitioner,

Vv.

RICK PERRY, in his official capacity as Governor of Texas

and Chairman, State Preservation Board, et al.

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICI CURIAE THE STATES OF

INDIANA, ALABAMA, DELAWARE, FLORIDA

KANSAS, NORTH DAKOTA, SOUTH CAROLINA,

UTAH AND VIRGINIA

IN SUPPORT OF THE RESPONDENTS

Office of the Indiana STEVE CARTER

Attorney General Attorney General

IGC South, Fifth Floor THOMAS M. FISHER*

302 West Washington Street Special Counsel

Indianapolis, IN 46204 RAEANNA S. MOORE

(317) 232-6201 Deputy Attorney General

*Counsel of Record Counsel for Amici States

(Additional Counsel Listed on Inside Cover)

—_—————————

TROY KING

Attorney General

State of Alabama

M. JANE BRADY

Attorney General

State of Delaware

CHARLES J. CRIST, JR.

Attorney General

State of Florida

PHILL KLINE

Attorney General

State of Kansas

WAYNE STENEHJEM

Attorney General

State of North Dakota

HENRY McMASTER

Attorney General

State of South Carolina

MARK L. SHURTLEFF

Attorney General

State of Utah

JERRY W. KILGORE

Attorney General

Commonwealth of Virginia

QUESTION PRESENTED

Whether a large monument, 6 feet high and 3 feet wide,

presenting the Ten Commandments, located on government

property between the Texas State Capitol and the Texas

Supreme Court, is an impermissible establishment of religion

in violation of the First Amendment.

il

TABLE OF CONTENTS

QUESTION PRESENTED ...........:csscescessesseeeeeeeeseneneenes i

TABLE OF AUTHORITIES skids sanstese ill

INTEREST OF THE AMICI STATESG...........:c0eeeeseeseees l

REASONS FOR GRANTING THE PETITION ........... 2

I. Government Ten Commandments Displays

Are Numerous, And The Debate Over Their

Constitutionality Demands Resolution .............. 2

II. The Circuits Are In Conflict Over Government

Ten Commandments Displays, And The

Applicable Doctrine Is In Disarray ..............-.-.-. 6

CONCLUSION ...........ssccseessesseesseeseeeseees tisensentumsesssseesees 9

ill

TABLE OF AUTHORITIES

Cases

ACLU Nebraska Found. v. City of Plattsmouth,

358 F.3d 1020 (8th Cir. 2004) (opinion vacated,

April 6, 2004, pending rehearing en banc). ........... 3, 6, 7,8

ACLU of Ohio v. Ashbrook, 211 F. Supp. 2d 873

(N.D. Ohio 2002), No. 02-3667

GOES Cae. GREG, TE, Ba itintetitenctniitcesnenitrctnmnnesete 3

ACLU v. Garrard County, No. 01-CV-481 (E.D. Ky.

SE PD, he, SD cicerscnnecenitancsinteiunientincisistnitiddiianininnennniil 4

ACLU v. Grayson County, No. 01-CV-202 (W.D. Ky.,

SRS BU, Si, AUD Ainincccsnscinciniiieniiciiteidaiintinldlibiiaittisdaemneied 4

ACLU v. Harlan County, 354 F.3d 438 (6th Cir. 2003)

petition for cert. filed, (U.S. June 21, 2004)

SR, Ge cctsesonsesidennnocciltigecicsensiinininisiisiinidientepiamnidaneusies 3

ACLU v. McCreary County, 354 F.3d 438 (6th Cir. 2003),

petition for cert. filed, (U.S. June 21, 2004)

oe iccecsovnccsninessiitsinsiiiiaiiiaiatiiibaiiaiaiicinineininaianaiienis 3,6

ACLU v. Mercer County, No. 01-CV-480 (E.D. Ky.

Jan. 22, 2003) (order granting summary judgment),

appeal pending, No. 03-5142, (6th Cir. argued

SITES Fig TD itactctnnetnsanenninsiinsinniiiamannntininniianimtnnenien 3

ACLU v. Monroe County, No. 3:04-CV-00048

(E.D. Tenn. filed January 28, 2004) ..0..........cccecceseeeseeeeeees 4

ACLU v. Pulaski County, 354 F.3d 438 (6th Cir. 2003),

petition for cert. filed, (U.S. June 21, 2004)

ee Ge ccnisscrsninanioneneninianinaisntinlisaiiighieiapaiiinpinante 3

iv

ACLU v. Rowan County, No. 01-CV-220

Se eg: SE DL Boe A aeissieinstneienenencncnnnsncidconeine’ 4

Adland v. Russ, 307 F.3d 471 (6th Cir. 2002),

cert. denied, 538 U.S. 999 (2003) ............ccesssssseeseeeeeeees 6, 8

Allegheny v. ACLU, 492 U.S. 573 (1989) ......cccccceeeeseeeeeees 8,9

Anderson v. Salt Lake City Corp., 475 F.2d 29

Cs CO eictiinsstssncinincinaediaiadindaiininseiiibitiioiaininssitanieel 6

Baker v. Adams County, 2004 WL68523 (6th Cir. 2004),

petition for cert. filed sub nom. Johnson v. Baker,

(U.S. June 14, 2004) (No. 03-1661)... cccecteeeeeseeeeeees 3

Books v. City of Elkhart, 235 F. 34 292 (7th Cir. 2000),

cert. denied, 532 U.S. 1058 (2001). .............cccscceeeeeees 4, 6,7

Books v. Elkhart County, No. 3:03-CV-233

(N.D. Ind. Mar. 19, 2004) (order granting motion

for summary judgment), appeal docketed,

No. 04-2075 (7th Cir. April 26, 2004)............... binebimnetie 3

Card v. City of Everett, No. 2:03-CV-02385

(W.D. Wash. filed July 23, 2003) .............ccccssessseessreeeseees 4

Chambers v. City of Frederick, No. 1:03-CV-01865

se Sn UN a MI iiernerrnscnceccnsnnsionsincenntecmsenncscconesl 4

Doe v. Barrow County, No. 03-CV-156

(N.D. Ga. filed September 16, 2003) .............cccscesseeeeeeeees 4

Freethought Society v. Chester County, 334 F.3d 247

SS SUN iterintintiiiccctibthiinitmindntniiidseninteniinnnemiincniasd 6, 8

Vv

Glassroth v. Moore, 335 F.3d 1282

a ay MT cisicaniietacacibteiteiiciieiiilaneiiitinbdincaininbistchicidigeatinsie 6,8

Indiana. Civil Liberties Union v. O’Bannon,

110 F.Supp. 2d. 842 (S.D. Ind. 2000). 0.0.0.0... eeeeeeeeeees 7

Indiana Civil Liberties Union v. O’Bannon,

259 F.3d 766 (7th Cir. 2001), cert. denied,

ee es Ny ee ncttsrececicncccccntanteiicsretintainunenccenessesel 6, 8

Larson v. Valente, 456 U.S. 228 (1982)...........ccccceesseceesseeeeees 7

Lee v. Weisman, 505 U.S. 577 (1992) .scssssssssssssssssssssssusssesseee

Lemon v. Kurtzman, 403 U.S. 602 (1971) ..........ccceeeeeeeeeees 7,8

Lynch v. Donnelly, 465 U.S. 668 (1984)...........ccccccceeeseeeeee 8,9

Marsh v. Chambers, 463 U.S. 783 (1983) .......ccscsssseeeseees 7,8

Mercier v. City of La Crosse, 305 F. Supp. 2d 999

(W.D. Wis. 2004), appeal docketed, No. 04-1321,

CHR AD, FAD By Be cccctlieantiitiztnsdsitnnseneinccniinsomepiviecteceses 3

Modrovich v. Allegheny County, No. 2:01-CV-531

(W.D. Pa. July 28, 2003) (order granting summary

judgment), appeal pending, No. 03-3571

(3d Cir. argued March 24, 2004)...........c.cccccessseeeeseeeseeeeeees 3

O’Bannon v. Indiana Civil Liberties Union,

No. 01-966, cert. denied, 534 U.S. 1162 (2002)................ 3

Society of Separationists v. Pleasant Grove,

No. 2:03-CV-839 (D. Utah May 28, 2004)

(order granting judgment on pleadings), available at

http://www.utd.uscourts.gov/reports/00000034.............0++ 3

v1

State of Colorado v. Freedom From Religion Found., Inc.,

BD eee DE GI BU vccccsccccescccsccsncsticcscesascsscsessccseees 6

Stone v. Graham, 449 U.S. 39 (1980) ..........ccccceeeeceesseeeeeeeeeees )

Suhre v. Haywood County, 55 F. Supp. 2d 384

RE a eas: MU vtatisicsiccieretniinetnalcinbhisipaicnietianitneientatincitncil 6

Twombly v. Fargo, No. 02-CV-137

RE Ee 4

Zelman v. Simmons-Harris, 536 U.S. 639 (2002).............00+ 7

Constitution and Statutes

U.S. Const., Amend. I (Establishment Clause)............ passim

a a ITTIITIIOT iscsinsencccnnsninioniciannnedsimeneninennmemnenateine 5

eC ___ ee TT 5

Bs RT SIE cccesisnscenesncsisdntsaneserecsosseencenemsensnneett 5

N.C. Gen. Stat. § 115C-81(g)(3b)5 ..... cece eeeeeeeeeteeeeeeeeeeees 5

N.M. Stat. §§ 22-15-15 to 22-15-20... eceeeeeeeeteeeeeeee 5

S.D. Codified Laws § 13-24-17.1 .o...cccccceececceeceeeseeeeeeeeeeeeees 5

Other Authorities

Alan Choate, Group Wants ‘Cornerstone of Law’

Proposal Put Into Writing, The Daily Inter Lake

(Kalispell, MT), June 8, 2004 .......ccccccssccssssessssssssssssseeesssen 4

Americans United for Separation of Church and State:

All 50 States (tracking current state legislation), at

http://www.au.org/site/PageServer?pagename

=advocacy states (last visited June 18, 2004) ................... 5

vii

Brendon Burke, Ten Commandments Plaza Delayed a

Year, Casper Star-Tribune (Wyoming), June 8, 2004.......4

Julie Sheldon, Group Helping to Keep Memorial,

Evening Sun (Hanover, PA), June 10, 2004, at A3............ 4

Summer of Decalogues: When is a Ten Commandments

Display Unconstitutional?, MSN’s Slate, July 25, 2003,

at http://slate.msn.com/ID/2086046.............::ssssssseeeeeeeees 2

H.R. 2045, 108th Cong. (2003). .0.........cccsseeeseesseeeeeeeeeeneeenees 5

H.R. 3895, 107th Cong. (2002) .........ccsccccsssesseeseseeseecereeeeees 5

H.R. 1501, 106th Cong. § 1202 (1999)... eceeeeteeeteeeees 5

H.R. Con. Res. 31, 105th Cong. (1997) .........ccccsceesseesseeeeees 5

INTEREST OF THE AMICI STATES

The amici states support the decision below upholding the

constitutionality of Texas’ Ten Commandments display.

Nonetheless, we join Texas in urging the Court .to grant the

petition so as to provide guidance to state and local govern-

ments concerning current and future Ten Commandments

displays.

All across the country, government buildings and grounds

feature displays of the Ten Commandments. Not all displays

have the same history or context. Some have been around for

decades, others are relatively new. But nearly all should be

defensible under the Establishment Clause as tributes to a

seminal part of our Nation’s history and civilization. Such is

the monument at issue in this case: It sits in a park-like

setting amidst other monuments reflecting the history and

culture of Texas and the Nation.

In addition to Texas, some states, such as Alabama,

Colorado, Indiana and Kentucky, themselves have litigated

whether their current or proposed Ten Commandments

monuments are permissible. Other states that do not now

have Ten Commandments displays on state property may

wish to have them, or they may be interested in preserving

displays on local government property. Unfortunately, the

lower courts (including the courts of appeals) are

increasingly divided over whether and when Ten Command-

ments displays are permissible. Amici thus have an interest

in this case because they currently have no reliable way of

knowing whether current or futur Ten Commandments

displays will pass Establishment Clause muster.

2

REASONS FOR GRANTING THE PETITION

Many government entities have been displaying the Ten

Commandiments for at least several decades, and recently

several others have proposed or establishe? new monuments.

Unfortunately, both the old displays and « few new ones

have in recent years become the subject of a litigation blitz.

As a consequence, public debate over the displays has

intensified dramatically. Many communities are currently

involved in litigation over whether their displays are

constitutional, and many more such cases are expected. All

the while, a newly refreshed circuit conflict over these

displays underscores the unworkability of Establishment

Clause doctrine in this area. The Court should grant the

petition, but ultimately affirm the decision below, to give

much needed guidance to the Nation.

I. Government Ten Commandments Displays Are

Numerous, And The Debate Over Their Constitu-

tionality Demands Resolution

1. The debate over government Ten Commandments

displays is currently one of a handful of issues that deeply

engages the American public. Indeed, an article in MSN’s

Slate Magazine dubbed the summer of 2003 the “Summer of

Decalogues.” See Summer of Decalogues: When is a Ten

Commandments Display Unconstitutional?, MSN’s Slate,

July 25, 2003, at http://slate.msn.com/ID/2086046.

Yet, Ten Commandments litigation is not just a breezy

summer pastime; it represents an ongoing and metastasizing

philosophical battle, which, far from peaking last summer,

may turn this into the “decade of Decalogues.” Ten

Commandments cases seem to occupy the federal courts

with increasing frequency, leaving governments that wish to

display the Commandments struggling to address or avoid

lawsuits. As Indiana first catalogued in its petition for a writ

3

of certiorari in O’Bannon v. Indiana Civil Liberties Union

No. 01-966, cert. denied, 534 U.S. 1162 (2002), many

pending Ten Commandments cases would benefit from the

Court’s guidance:

Cases on appeal:

ACLU vy. Harlan County, 354 F.3d 438 (6th Cir. 2003),

petition for cert. filed, (U.S. June 21, 2004) (No. 03-1698);

ACLU v. McCreary County, 354 F.3d 438 (6th Cir. 2003),

petition for cert. filed, (U.S. June 21, 2004) (No. 03-1693);

ACLU v. Pulaski County, 354 F.3d 438 (6th Cir. 2003),

petition for cert. filed, (U.S. June 21, 2004) (No. 03-1693);

Society of Separationists v. Pleasant Grove, No. 2:03-CV-

839 (D. Utah May 28, 2004) (order granting judgment on

pleadings), available at http://www.utd.uscourts.gov/reports

/00000034.pdf, appeal docketed, No. 04-4136 (10th Cir.

June 21, 2004); Baker v. Adams County, 2004 WL68523 (6th

Cir. 2004), petition for cert. filed sub nom. Johnson v. Baker,

(U.S. June 14, 2004) (No. 03-1661); ACLU v. Mercer

County, No. 01-CV-480 (E.D. Ky. Jan. 22, 2003) (order

granting summary judgment), appeal pending, No. 03-5142,

(6th Cir. argued April 27, 2004); Books v. Elkhart County,

No. 3:03-CV-233 (N.D. Ind. Mar. 19, 2004) (order granting

motion for summary judgment), appeal docketed, No. 04-

2075 (7th Cir. April 26, 2004); ACLU Nebraska Found. v.

City of Plattsmouth, 358 F.3d 1020 (8th Cir. 2004) (opinion

vacated April 6, 2004, pending rehearing «« banc);

Modrovich v. Allegheny County, No. 2:01-CV-531 (W.D. Pa.

July 28, 2003) (order granting summary judgment), appeal

pending, No. 03-3571 (3d Cir. argued March 24, 2004);

Mercier v. City of La Crosse, 305 F. Supp. 2d 999 (W.D.

Wis. 2004), appeal docketed, Nos. 04-1321, et al. (7th Cir.

Feb. 9, 2004); ACLU of Ohio v. Ashbrook, et al., 211 F.

Supp. 2d 873 (N.D. Ohio 2002), No. 02-3667 (6th Cir.

argued Oct. 31, 2003).

Cases in district court:

ACLU v. Monroe County, No. 3:04-CV-00048 (E.D.

Tenn. filed January 28, 2004); Doe v. Barrow County, No.

03-CV-156 (N.D. Ga. filed September 16, 2003); Card v.

City of Everett, No. 2:03-CV-02385 (W.D. Wash. filed July

23, 2003); Chambers v. City of Frederick, No. 1:03-CV-

01865 (D. Md. filed June 24, 2003); Twombly v. Fargo, No.

02-CV-137 (D. N.D. filed Nov. 27, 2002); ACLU v. Garrard

County, No. 01-CV-481 (E.D. Ky. filed Nov. 27, 2001);

ACLU v. Grayson County, No. 01-CV-202 (W.D. Ky. filed

Nov. 27, 2001); ACLU v. Rowan County, No. 01-CV-220

(E.D. Ky. filed Nov. 27, 2001).

In addition, several more governments are attempting to

negotiate compromises in order to avoid threatened lawsuits.

See Julie Sheldon, Group Helping to Keep Memorial,

Evening Sun (Hanover, PA), June 10, 2004, at A3; Alan

Choate, Group Wants ‘Cornerstone of Law’ Proposal Put

Into Writing, The Daily Inter Lake (Kalispell, MT), June 8,

2004, available at http://www.dailyinterlake.com/NewsEng

ine/SelectStory_AD.tpl?command=search&db=News.db&eq

skudata=88-808567-18; Brendan Burke, Ten Commandments

Plaza Delayed a Year, Casper Star-Tribune (Wyoming),

June 8, 2004, available at http://www.casperstartribune.net/

articles/2004/06/08/news/casper/26 1 Sdcd22ee473 1c87256ea

d00053429.txt. The frequency of Ten Commandments-

related Establishment Clause lawsuits (and threatened

lawsuits) is thus already very high.

2. Nor is this issue likely to fade. Not only do hundreds of

government Ten Commandments displays already exist

across the country (see Books v. City of Elkhart, 235 F.3d

292, 294-95 (7th Cir. 2000)), but there is also a resurgent

popular (and hence government) interest in Ten

Commandments displays. At least five states have enacted

legislation authorizing displays of the Ten Commandments

5

in historical contexts on public grounds or in public schools.

See Ind. Code §§ 4-20.5-21-2 and 36-1-16-2; Ky. Rev. Stat.

§ 158.195; N.M. Stat. §§ 22-15-15 to 22-15-20; N.C. Gen.

Stat. § 115C-81(g)(3b); and S.D. Codified Laws § 13-24-

17.1. Furthermore, in the past year, legislatures in Alabama,

Florida, Georgia, Idaho, Maryland, Mississippi, Ohio,

Oklahoma, South Carolina, Tennessee and Virginia all

reportedly considered taking steps to support, permit or

require government or public school displays of the Ten

Commandments. See Americans United for Separation of

Church and State: All 50 States (tracking current state

legislation), at http://www.au.org/site/PageServer?pagename

=advocacy_states (last visited June 18, 2004).

Congress has also put promoting the Ten Commandments

on its agenda. In 1997, the House of Representatives passed

a Resolution expressing its sense that “(1) the Ten

Commandments are a declaration of fundamental principles

that are the cornerstones of a fair and just society; and (2) the

public display, including display in government offices and

courthouses, of the Ten Commandments should be per-

mitted.” H.R. Con. Res. 31, 105th Cong. (1997). In 1999,

the House (but not the Senate) passed the Ten Command-

ments Defense Act, which would have approved posting the

Ten Commandments on state and local government property.

H.R. 1501, 106th Cong. § 1202 (1999). Congress has

continued to pursue this issue. See H.R. 3895, 107th Cong.

(2002) and H.R. 2045, 108th Cong. (2003).

These legislative endeavors highlight the importance of

government Ten Commandments displays to the American

public. It follows that granting certiorari to resolve the

constitutionality of such displays is also of great public

interest.

6

II. The Circuits Are In Conflict Over Government

Ten Commandments Displays, And The Applic-

able Doctrine Is In Disarray

1. Government Ten Commandments displays have been

upheld not only in the decision below, but also in the Third

and Tenth Circuits, as well as in the Colorado Supreme

Court.' Such displays have been held unconstitutional in the

Sixth, Seventh, and Eleventh Circuits.27 An Eighth Circuit

panel decision also found a Ten Commandments display

unconstitutional; however, that decision was vacated pending

en banc rehearing. ACLU Nebraska Found. v. City of

Plattsmouth, 358 F.3d 1020 (8th Cir. 2004) (opinion vacated,

April 6, 2004, pending rehearing en banc).

Notwithstanding this conflict, in recent years this Court

has declined to hear several cases in which a local or state

government’s Ten Commandments display was adjudged to

violate the Establishment Clause. Adland v. Russ, 307 F.3d

471 (6th Cir. 2002), cert. denied, 538 U.S. 999 (2003);

Glassroth v. Moore, 335 F.3d 1282 (11th Cir.), cert. denied,

124 S.Ct. 497 (2003); Indiana Civil Liberties Union v.

O’Bannon, 259 F.3d 766 (7th Cir. 2001), cert. denied, 534

' Freethought Society v. Chester County, 334 F.3d 247 (3d

Cir. 2003); Anderson v. Salt Lake City Corp., 475 F.2d 29

(10th Cir. 1973); State of Colorado v. Freedom From:

Religion Found., Inc., 898 P.2d 1013 (Colo. 1995); see also

Suhre v. Haywood County, 55 F. Supp. 2d 384, 399 (W.D.

N.C. 1999) (upholding a courtroom display that included the

Ten Commandments).

? ACLU v. McCreary County, 354 F.3d 438 (6th Cir. 2003);

Adland v. Russ, 307 F.3d 471 (6th Cir. 2002); Books v. City

of Elkhart, 235 F.3d 292 (7th Cir. 2000); Indiana Civil

Liberties Union v. O’Bannon, 259 F.2d 766 (7th Cir. 2001);

Glassroth v. Moore, 355 F.3d 1282 (11th Cir. 2003).

7

U.S. 1162 (2002); Books v. City of Elkhart, 235 F. 3d 292

(7th Cir. 2000), cert. denied, 532 U.S. 1058 (2001). But

while each of those displays came to the court having been

enjoined below, here the Fifth Circuit upheld a display. This

holding demonstrates that the circuit conflict concerning

such displays is vital, fresh and deep.

2. Fueling this conflict, as well as the raging public debate

over the Ten Commandments, is confusing and oft-criticized

Establishment Clause doctrine. In Indiana’s Ten Command-

ments case a few years ago, the district court remarked that

sorting through the merits was “no small assignment, given

the profusion and confusion reflected in the case law and in

Supreme Court precedent.” /ndiana Civil Liberties Union v.

O’Bannon, 110 F.Supp. 2d. 842, 848 (S.D. Ind. 2000).

Lemon v. Kurtzman, 403 U.S. 602 (1971), is the seminal

decision for Establishment Clause cases, but this Court itself

has sometimes eschewed Lemon in favor of more subjective,

if doctrinally less rigorous, analyses, with seemingly

conflicting results. Compare Marsh v. Chambers, 463 U.S.

783, 786-792 (1983) (upholding the common practice of

legislative prayer based on “common sense” that government

was not promoting religion) with Lee v. Weisman, 505 U.S.

577, 586-87 (1992) (invalidating commonplace public school

graduation prayers because government was so obviously

sponsoring religious practice). More recently, the majority

opinion in Zelman v. Simmons-Harris, 536 U.S. 639 (2002),

did not even mention Lemon.

It should therefore not be surprising that lower courts

frequently struggle just to determine what precedent to

apply. At least one court wondered whether Ten Command-

ments displays discriminate among religions and thus trigger

the “strict scrutiny” standard from Larson v. Valente, 456

U.S. 228 (1982). See ACLU Nebraska Found. v. City of

Plattsmouth, 358 F.3d 1020, 1032-34 (8th Cir. 2004)

8

(opinion vacated, April 6, 2004, pending rehearing en banc);

see also Glassroth v. Moore, 335 F.3d 1282, 1299 n. 3 (11th

Cir. 2003). Others have decided Ten Commandments issues

using the Court’s reasoning in both Lemon and Marsh. See

ACLU Nebraska, 358 F.3d at 1034, 1042; Glassroth, 335

F.3d at 1295, 1297-98; see also Indiana Civil Liberties

Union v. O'Bannon, 259 F.3d 766, 779 (7th Cir. 2001)

(Coffey, J., dissenting) (citing Marsh for the proposition that,

“[w]here a religious symbol has a landmark foundation and

meaning in the history of our country,” the government may

display a symbol regardless of analysis under Lemon).

This uncertainty surrounding Lemon’s meaning and

vitality has been exacerbated by the endorsement test from

Lynch v. Donnelly, 465 U.S. 668, 691 (1984) (O’Connor, J.,

concurring), and Allegheny v. ACLU, 492 U.S. 573, 592-94

(1989). Adland, for example, explained esoterically that the

Sixth Circuit has used the endorsement test as “a refinement

or modification of the first and second prongs [of Lemon], a

clarification of the first prong [of Lemon], . .. as a

modification of the entire Lemon test,” and “as a refinement

of the second Lemon prong.” Adland, 307 F.3d at 479

(internal citations omitted).

It was therefore a dramatic understatement for the Third

Circuit to observe in a Ten Commandments display case that

Establishment Clause doctrine “is somewhat murky... .”

Freethought Society v. Chester County, 334 F.3d 247, 256

(3d Cir. 2003). In fact, expressing dissatisfaction with

Lemon and its progeny has become de rigueur in

Establishment Clause opinions. See Glassroth, 335 F.3d at

1295 (“We follow in the tradition in this area by beginning

with the almost obligatory observation that the Lemon test is

often maligned.”’).

The Court last directly addressed the circumstances in

which government may display the Ten Commandments in

9

Stone v. Graham, 449 U.S. 39 (1980). Stone invalidated

particular types of Ten Commandments displays in public

school classrooms, but its rationale applies only in that

narrow context. /d. at 42. Lynch and Allegheny address

government displays of other religious objects to the general

public, but those cases are of limited use because they

address temporary displays concerning religious celebra-

tions, not permanent displays related to history and culture.

Only by reviewing a general public Ten Commandments

display case can the Court provide the necessary guidance.

This case bears all the hallmarks of being worthy of

review: The doctrine is jumbled, the litigation is growing,

the public is engaged, and the Fifth Circuit has just freshened

the conflict. It is time to resolve the Ten Commandments

issue.

CONCLUSION

The petition for a writ of certiorari should be granted, and

the Court should affirm the decision below.

Respectfully submitted,

Office of the Indiana STEVE CARTER

Attorney General Attorney General

IGC South, Fifth Floor THOMAS M. FISHER*

302 West Washington Street Special Counsel

Indianapolis, IN 46204 RAEANNA S. MOORE

(317) 232-6201 Deputy Attorney General

*Counsel of Record Counsel for Amici States

Dated: July 6, 2004