# Amicus Curiae Brief — Van Orden v. Perry

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0001%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 677

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0001%3A04. Public record. Not legal advice.