Amicus Curiae Brief — Van Orden v. Perry

=

- “ _—- ve

No. 03-1500

ood In The

Supreme Court of the United States

¢

THOMAS VAN ORDEN,

Petitioner.

v.

RICK PERRY, et al.,

Respondents.

°

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

¢

BRIEF AMICUS CURIAE OF THE

AMERICAN FAMILY ASSOCIATION

CENTER FOR LAW & POLICY

IN SUPPORT OF RESPONDENTS

.

STEPHEN M. CRAMPTON

Counsel of Record

BRIAN FAHLING

MICHAEL J. DEPRIMUO

AMERICAN FAMILY ASSOCIATION

CENTER FoR LAW & POLICS

100 Parkgate Drive, Suite 2-B

Tupelo, MS 38801

(662) 680-3886

January 31, 2005

COCKLE LAW BRIEF PRINTING CO (800) 225 0904

OR CALL COLLECT (402) 442 2841

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ..............cccccsesssseseees 1

I. LEMON MUST BE REPLACED........................ 2

A. Lemon is Unduly Fact-Sensitive ................ 3

B. In Practical Effect, Lemon Favors Irreli-

ED GE GE etccccnsesenterionnenninnionminn 4

C. Lemon Turns the Establishment Clause

from a Shield Intended to Protect Reli-

gious Freedom into a Sword Used To

FEE Fa ctncencscescenstnensincnermimenntnicsies 6

D. Lemon Fails to Provide Narrow Guidelines

Ensuring Against Unbridled Judicial Dis-

GD cceneerntartsnsstetiniiinnmntinninnicasnins 8

Il. THE ESTABLISHMENT CLAUSE HAS NO

APPLICATION TO THE INSTANT CASES..... 11

Ill. AN ALTERNATIVE TO LEMON. ................000005 12

A. The Establishment Clause Should not Ap-

ply Absent Legislative Action ..................... 13

B. The Establishment Clause Should not Ap-

ply Absent Legal Coercion .....................000 14

1. The Model of Barnette .................:cccc0000 15

2. Fashioning a Barnette-Type Test .......... 16

Te icerciccaiencsinenncsittadiiniainiiancsinaiiinenntmntiienents 18

ii

TABLE OF AUTHORITIES

Page

CASES

American Civil Liberties Union v. City of Stow, 29

F. Supp. 2d 845 (N.D. Ohio 1998)...............cccceceeeeeeeeeeeeees 4

American Civil Liberties Union v. McCreary

County, 354 F.3d 438 (6th Cir. 2003) ........................ 7,14

American Civil Liberties Union of New Jersey v.

Schundler, 104 F.3d 1435 (3d Cir.), cert. denied,

te Bl), sciicciniissdiatmiatiaiaaial 4

American Coalition of Life Activists, 539 U.S. 958

CIID nocccncecesesesscsunseennnssnneseiennasensialaniaieiiininnnnnnnnnnnE 1

American Family Ass’n, Inc. v. City and County of

San Francisco, 277 F.3d 1114 (9th Cir.), cert. de-

pied, GBT U.S. GBB CORSE cecscecsnssctsensviiniinnnaisemeaaen 5

Baker v. Adams County, 86 Fed. Appx. 104, 2004

WL 68523 (6th Cir.), petition for cert. filed, 72

USLW 3769 (June 14, 2004)..............ccccceceeessseeeeeeeseees 7

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).............. 1

Barron v. Baltimore, 32 U.S. 243 (1833)...............ccccceeeeeee 11

Cantwell v. Connecticut, 310 U.S. 296 (1940)..................... 8

Capitol Square Review and Advisory Bad. v. Pinette,

SIS UB. FED CHIBI accccasesutsinnesetinsiiititiapianninttainitiensiiaanass 9

Children’s Legal Foundation, Inc. v. Action for

Children’s Television, 537 U.S. 886 (1992)..................... 1

City of Lakewood v. Plain Dealer Pub. Co., 486 U.S.

FED (RGGID cncececvscnsnstiieiniamainabinasiaaadibaatias aati tities 9

TABLE OF AUTHORITIES - Continued

Page

Committee for Pub. Educ. & Religious Liberty v. ;

I, Ge reels Ge ED cectncscnnccncsesesecicssovncsoncovescoscees 2

County of Allegheny v. ACLU, 492 U.S. 573 (1989)............ 3

Elk Grove Unified Sch. Dist. v. Newdow, __ U.S.

ci iniiciidnmctigntcnenonennnnneny passim

Engel v. Vitale, 370 U.S. 421 (1962)..........ccsccceesseeeeeeeeeees 16

Everson v. Bd. of Educ., 330 U.S. 1 (1947).............cccceeeeees 14

Ex parte Garland, 71 U.S. 333 (1867)...........ccccccececceeeeeeees 11

Furman v. Georgia, 408 U.S. 238 (1972) ........ccccccseeeseeeneees 3

Indiana Civil Liberties Union v. O’Bannon, 259

F.3d 766 (7th Cir. 2001), cert. denied, 534 U.S.

EEE ETE a ae 4

Graves v. O’Keefe, 306 U.S. 466 (1939) ............cccceeeeeeeeeeees 13

Jaffree v. Board of School Com’rs of Mobile County,

554 F.Supp. 1104 (D.Ala. 1983), aff’d in part,

rev'd in part, 705 F.2d 1526, rev’d, 472 U.S. 38

EE enn il

Lawrence v. Texas, 539 U.S. 558 (2003) .............ceeeeceeeee wees 1

Lee v. Weisman, 505 U.S. 577 (1992) ..............ccceeeeeeees 14, 16

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

Lynch v. Donnelly, 465 U.S. 668 (1984) ............ccccceeseeeeeees 10

Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003),

cert. denied, 124 S.Ct. 1750 (2004).................ccccceseeeeeeeees 7

Okwedy v. Molinari, 69 Fed. Appx. 82, 2003 WL

OID TTT ao ect tarnegemssnobondnedsonebenetionss 5

Rosenberger v. Rector and Visitors of Univ. of Va.,

i aa csreieraieatianlinemnaienaintinaninentetiis 2

iv

TABLE OF AUTHORITIES — Continued

Page

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290

See ocincseinessiisiinitiuminiciictanasensnnneiiiesdbbienissansbeaiibasiniiniebiapaaniteiiheds 16

Selman v. Cobb County Sch. Dist., 2005 WL 83829

ee SDs Se iececcnisenscniesucessiinibibinciticeeideenniiasidlasiaiiapatinnasiaaataes 4,5

School Dist. of Abington Township v. Schempp, 374

Sk Se eI cpciicheicnenevinciatinintininnisciniiannséeniiapuiiemaniiins 13

Shuttlesworth v. Birmingham, 394 U.S. 147 (1969)........... 8

Slaughter-House Cases, 83 U.S. 36 (1873)............::cccceeee 12

Stenberg v. Carhart, 530 U.S. 914 (2000) .......... ce eeeeeeeees 1

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)............... 5

United States v. American Library Ass’n, 539 U.S.

SU TTT cccsiiceniitvtiincsitieaeiisheiiteicitianaanicndaniniiaeebedaiplaadailaaece 1

United States v. Extreme Associates, Inc., 2005 WL

re ea STEED cccestonciedectiosnpnteneanenesciniiiiubinciiniguieetd 6

Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003)........... 2,3

Walz v. Tax Comm’n of New York City, 397 U.S. 664

TIT icicniceriiensiecnncsninebonninmncsaiiniteipneseinininencisidaiddiadaiins 18

West Virginia State Bd. of Educ. v. Barnette, 319

Se ee I ccntereshevinisienenssndianesiunatitiatabnibianadd 3, 15, 16

Yacovelli v. Moeser, 2004 WL 1144183 (M.D.N.C.

SUE TIE wrinticnsnaienentaiianinsieccmmanioniiienninnégedmamimmmaaiiiamnias 8

OTHER AUTHORITIES

Adam M. Conrad, Note, Hanging The Ten Com-

mandments On The Wall Separating Church And

State: Toward A New Establishment Clause Ju-

risprudence, 38 Ga. L. Rev. 1329 (2004)..............cccceeeeeeee 2

TABLE OF AUTHORITIES -— Continued

Andrew- R. Cogar, Note, Government Hostility to

Religion: How Misconstruction of the Establish-

ment Clause Stifles Religious Freedom, 105 W.

Ihc: iis NR a a

Ashley M. Bell, “God Save This Honorable Court”:

How Current Establishment Clause Jurispru-

dence Can Be Reconciled With The Secularization

Of Historical Religious Expressions, 50 Am. U. L.

ee re ait erncciasitiiinetinnsnesetinniinnibcmimsduninnnnninnase

BLACK’S LAW DICTIONARY 795 (5th ed. 1979)............... 13,

DANIEL L. DREISBACH, REAL THREAT AND MERE

Sa i 6,

GERARD V. BRADLEY, CHURCH-STATE RELATIONSHIPS

I Faia ciitilicinittacnieninshicesniibitniisieaeniaiinsiaiitaliciiaies

Gregory C. Sisk, Michael Heise, and Andrew P.

Morriss, Searching For The Soul Of Judicial

Decisionmaking: An Empirical Study Of Reli-

gious Freedom Decisions, 65 Ohio St. L.J. 491

SEITE dahensianienpstnicerninnhabiaiibasdattuanecieitiiiueiiaapaieieiiit

Michael W. McConnell, Coercion: The Lost Element

of Establishment, 27 Wm. & Mary L. Rev. 933

ae eee eae EET eT

Michael W. McConnell, Establishment and Dises- —.

tablishment at the Founding, Part I: Establish-

ment Of Religion, 44 Wm. & Mary L. Rev. 2105

SETI scesvsisensnsednenanecsietiiallinlaiiiladuiiscnadnbapidnniminiiadiatinnent

Michael W. McConnell, Religious Participation in

Public Programs: Religious Freedom at a Cross-

— roads, 59 U. Chi. L. Rev. 115 (1992)................cccssscceeees

PHILIP HAMBURGER, SEPARATION OF CHURCH AND

gS | TTT SNe Oa DE Re eT aCe

1

INTEREST OF AMICUS CURIAE’

Amicus, American Family Association Center for Law

& Policy (AFA CLP), is the legal arm of American Family

Association, Inc., a pro-family organization incorporated in

1977 under the name of National Federation for Decency,

Inc. with hundreds of thousands of supporters nationwide.

AFA CLP is a public interest-type law firm specializing in

First Amendment litigation. AFA CLP attorneys have

participated as amicus curiae in numerous cases in this

Court. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003);

United States v. American Library Ass’n, 539 U.S. 194

(2003); American Coalition of Life Activists, 539 U.S. 958

(2003); Stenberg v. Carhart, 530 U.S. 914 (2000); Chil-

dren’s Legal Foundation, Inc. v. Action for Children’s

Television, 537 U.S. 886 (1992); Barnes v. Glen Theatre,

Inc., 501 U.S. 560 (1991).

Additionally, AFA CLP attorneys have litigated cases

involving Establishment Clause challenges to public

displays of the Ten Commandments, most recently in

Baker v. Adams County, 86 Fed. Appx. 104, 2004 WL

68523 (6th Cir. 2004), petition for cert. filed, 72 USLW

3769 (June 14, 2004). As a result, AFA CLP has developed

an expertise and keen interest in this area of the law and

believes its perspective may be of benefit to the Court.

' The parties have consented to the filing of this brief. Counsel for

a party did not author this brief in whole or in part. No person or entity,

other than the Amicus Curiae, its members and its counsel made a

monetary contribution to the preparation and submission of this brief.

2

I. LEMON’ MUST BE REPLACED

This Court’s Establishment Clause jurisprudence is

“in hopeless disarray.” Rosenberger v. Rector and Visitors -

of Univ. of Va., 515 U.S. 819, 861 (1995) (Thomas, J.,

concurring). The Lemon test has resulted in an endless

line of confusing and conflicting decisions which serve

little or no precedential value and leave both lower courts

and citizens alike groping to discern the constitutionality

of contemplated governmental action. See, e.g., Committee

for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646,

671 (1980) (Stevens, J., dissenting) (noting the “sisyphean

task of trying to patch together the ‘blurred, indistinct,

and variable barrier’ described in Lemon”). As one com-

mentator on Lemon has observed, “[iJn thirty years the

test has earned nothing but ridicule from both academia

and the bench.” Adam M. Conrad, Note, Hanging The Ten

Commandments On The Wall Separating Church And

State: Toward A New Establishment Clause Jurisprudence,

38 Ga. L. Rev. 1329, 1356 (2004).*

* Lemon vu. Kurtzman, 403 U.S. 602 (1971).

* This point is more fully developed in several briefs filed in

support of the displays in this case. See, eg., Petitioners’ Brief in

McCreary County, Kentucky v. ACLU; Brief of Amicus Curiae Eagle

Forum Education & Legal Defense Fund, 2004 WL 2825470, *4; Brief of

Amicus Curiae The Rutherford Institute, 2004 WL. 2825468, *13; Brief

of Amicus Curiae Pacific Justice Institute, 2004 WL 2851010, *6.

Curiously, not a single brief supporting the respondent in McCreary

County or the petitioner in Van Orden v. Perry, 35) F.3d 173 (5th Cir.

2003) could be found questioning the wisdom of retaining Lemon. See,

e.g., Brief of Amici Curiae American Humanist Association, et al., 2004

WL 2911173, *8 (“The Lemon test, as a ‘fail one, fail all’ three-prong

test, is a sensible reflection of the values embodied in the Establish-

ment Clause, and remains an eminently workable and dynamic model

to assess the constitutionality of government activity”); Brief of Amicus

Curiae Council for Secular Humanism, 2004 WL 2899174, *19. One

(Continued on following page)

3

A. Lemon is Unduly Fact-Sensitive.

The Fifth Circuit accurately described the inquiry

_ under Lemon as “fact-sensitive,” and noted that placing

the Ten Commandments monument in the proper context

is “a delicate task.” Van Orden v. Perry, supra, 351 F.3d at

178. In fact, the test has devolved into a highly subjective,

hyper-fact-sensitive analysis that yields different results

from different judges, depending on the inclinations and

biases of the judges and on precisely how they choose to

weigh and balance the various factual nuances of the case

before them.

This mulling of minutiae‘ is not law; it is the setting of

social policy. And under our constitutional system, setting

policy is the business of the legislature, not the courts. See,

e.g., Furman v. Georgia, 408 U.S. 238, 383 (1972) (Burger,

C.J., dissenting) (“[iJn a democratic society legislatures,

not courts, are constituted to respond to the will and

consequently the moral values of the people”); West Vir-

ginia State Bd. of Educ. v. Barnette, 319 U.S. 624, (1943)

(Frankfurter, J., dissenting) (the Court is not “free to act

as though we were a superlegislature”).

Amici opposing the displays in these cases amply

demonstrate the absurdity of this state of affairs, arguing for

instance that the use of a particular translation renders the

Texas monument unconstitutional (see Brief of Amicus

Curiae Anti-Defamation League, 2004 WL 2911167, *25),

group of amici, National School Boards Association, et al., supports

neither party, but urges the Court to replace Lemon with an endorse-

ment test. This disparity alone signals a serious concern with the

continued viability of the Lemon test.

* As Mr. Justice Kennedy has commented, the Court has embraced

a “jurisprudence of minutiae.” County of Allegheny v. ACLU, 492 U.S.

573, 674 (1989) (Kennedy, J., concurring and dissenting).

4

and that because the Texas display lies on the exact line

between the legislature, the governor’s office, and the

supreme court, it constitutes an impermissible endorse-

ment of religion. See Brief of Amicus Curiae Council for

Secular Humanism, 2004 WL 2899174, *13.°

B. In Practical Effect, Lemon Favors Irreli-

gion over Religion.

The Lemon test has effectively codified anti-religion,

not neutrality, as the status quo. See, e.g., Indiana Civil

Liberties Union v. O’Bannon, 259 F.3d 766, 780 (7th Cir.

2001), cert. denied, 534 U.S. 1162 (2002) (Coffey, J., dis-

senting) (using Lemon to find passive Ten Commandments

monument in violation of Establishment Clause has

brought us “to a point where irreligion is favored over

religion”). Employing Lemon, organizations and individu-

als bent on removing all vestiges of religion from the

public square have successfully petitioned the courts to

strike everything from créche displays to crosses on city

seals to a sticker in science textbooks explaining that

evolution is a just a theory. See, e.g., American Civil

Liberties Union of New Jersey v. Schundler, 104 F.3d 1435

(3d Cir.), cert. denied, 520 U.S. 1265 (1997); American

Civil Liberties Union v. City of Stow, 29 F. Supp. 2d 845

(N.D. Ohio 1998); Selman v. Cobb County Sch. Dist., 2005

WL 83829 (N.D. Ga. 2005).°

* This sort of landscape argument led Judge Coffey of the Seventh

Circuit to warn that courts “should not be in the business of monument

design.” Indiana Civil Liberties Union v. O'Bannon, 259 F.3d 766, 776

(7th Cir. 2001), cert. denied, 534 U.S. 1162 (2002) (Coffey, J., dissenting).

* In Selman, the sticker read in its entirety stated: “This textbook

contains material on evolution. Evolution is a theory, not a fact,

(Continued on following page)

5

Additionally, although this Court has repeatedly

stated that the Establishment Clause forbids hostility

against religion, e.g., Texas Monthly, Inc. v. Bullock, 489

U.S. 1, 9 (1989), under Lemon, government hostility

toward religion has routinely been upheld. See, e.g.,

American Family Asc’n, Inc. v. City and County of San

Francisco, 277 F.3d 1114, 1119, 1122-23 (9th Cir.), cert.

denied, 537 U.S. 886 (2002) (upholding resolution con-

demning Christian ministries’ “hateful rhetoric against

gays” in their “Truth in Love” campaign offering hope for

change from homosexuality through Jesus Christ; holding

that primary effect of resolution was not hostility, but

“encouraging equal rights for gays and discouraging hate

crimes”); Okwedy v. Molinari, 69 Fed. Appx. 482, 2003 WL

21492487 (2d Cir. 2003) (ministry’s public display of Bible

verse on billboard was declared by Borough President Guy

Molinari to be “mean-spirited” and to “convey an atmos-

phere of intolerance which is not welcome in [New York

City],” after which billboard was immediately removed by

billboard owner, in breach of ministry's contract; Estab-

lishment Clause claim dismissed).

In practice the Lemon test has been a one-way street:

benign religious displays and symbols are condemned,

regarding the origin of living things. This material should be ap-

proached with an open mind, studied carefully, and critically consid-

ered.” 2005 WL 83829, *4. Based on this simple statement, and

applying the Lemon test, the judge reasoned that “[ajn informed,

reasonable observer would understand the School Board to be endors-

ing the viewpoint of Christian fundamentalists and creationists that

evolution is a problematic theory lacking an adequate foundation.” Jd.

at *20.

6

while overt government hostility toward religion is con-

doned.’ It is time for Lemon to be jettisoned.

C. Lemon Turns the Establishment Clause

from a Shield Intended to Protect Reli-

gious Freedom into a Sword Used to

Harm Religion.

The original intent of the Establishment Clause was

both to prevent the establishment of a national church and

to protect “individual states against federal interference

with existing church-state relationships.” DANIEL L.

DREISBACH, REAL THREAT AND MERE SHADOW 65, 66 (1987);

see also, Elk Grove Unified Sch. Dist. v. Newdow, ___ U.S.

___, 124 S.Ct. 2301, *2330 (2004) (Thomas, J., concurring)

(citing AKHIL AMAR, THE BILL OF RIGHTS 36-39 (1998)).

That is, it was adopted for the purpose of protecting

religion and religious freedom. However, over time, the

Lemon test has turned this shield into a sword wielded

against the very religious freedom the Clause was initially

designed to protect.

“To the extent that Lemon’s purpose prong requires

the government to turn a blind eye to the impact of its

actions on religion, on the implicit assumption that secular

effects are all that matter, it is a recipe for intolerance.”

Michael W. McConnell, Religious Participation in Public

Programs: Religious Freedom at a Crossroads, 59 U. Chi.

" In fact, even purveyors of rank obscenity receive more protection

under the First Amendment than those who wish to display the Ten

Commandments in public, at least in the Western District of Pennsyl-

vania. See United States v. Extreme Associates, Inc., 2005 WL 121749

(W.D. Pa. 2005).

7

L. Rev. 115, 129 (1992). After all, hostility toward religion

is itself a secular purpose.

Conversely, when there is any hint of religious motive

behind government action, however indirect, no stone is

left unturned in the efforts to root it out and decree the act

unconstitutional. See, e.g., American Civil Liberties Union

v. McCreary County, 354 F.3d 438, 455-56 (6th Cir. 2003)

(finding “evolution” of displays from religious motivation

relevant to purpose prong of Lemon, notwithstanding

sworn testimony to the contrary); Baker v. Adams County,

supra, 86 Fed. Appx. 104, 110 (“The fact that the monu-

ment was donated by the Adams County Ministerial

Association, a Christian religious organization that also

agreed to indemnify the Board for any litigation expenses,

implies” an illicit purpose under Lemon, irrespective of the

school board’s secular motive in accepting the monument.).

And while numerous cases have held government

actions unconstitutional because they were found to have

had a primary effect of advancing religion, “([n]o court in

any jurisdiction has struck down a law that allegedly had

the primary effect of inhibiting religion.” See Andrew R.

Cogar, Note, Government Hostility to Religion: How

Misconstruction of the Establishment Clause Stifles Reli-

gious Freedom, 105 W. Va. L. Rev. 279, 310 (2002).

When religious practices have been permitted under

Lemon, they have usually been those of a minority religion

or sect, while even voluntary practices of a perceived

mainstream religion are disallowed. For example, in

Mellen v. Bunting, 327 F.3d 355, 371-372 (4th Cir. 2003),

cert. denied, 124 S.Ct. 1750 (2004), the custom of offering a

voluntary prayer in the Judeo-Christian tradition before

the evening meal at Virginia Military Institute was held to

8

violate the Establishment Clause. By contrast, in Yacovelli

v. Moeser, 2004 WL 1144183, *13 (M.D.N.C. 2004), a

mandatory assignment for incoming freshmen to read a

book containing lengthy portions of the Koran and listen

to a recording of an Islamic imam chanting a call to prayer

in Arabic was upheld.

Furthermore, in those rare instances in which a

mainstream religious practice was upheld, courts have

usually done so only when the practice was deemed

stripped of all religious meaning. See, e.g. Newdow, supra,

__ US. __., 124 S.Ct. 2301, 2323 (2004) (O’Connor, J.,

concurring) (some official references to God “can serve to

solemnize an occasion instead of to invoke divine prove-

nance,” including the national motto, the national anthem,

and the prayer with which this Court opens).

D. Lemon Fails to Provide Narrow Guide-

lines Ensuring Against Unbridled Judicial

Discretion.

It has long been held by this Court that “a law sub-

jecting the exercise of First Amendment freedoms to the

prior restraint of a license, without narrow, objective, and

definite standards to guide the licensing authority, is

unconstitutional.” Shuttlesworth v. Birmingham, 394 U.S.

147, 150-151 (1969); see also, Cantwell v. Connecticut, 310

U.S. 296, 305 (1940). But while government officials from

the executive branch are prohibited from abusing their

discretion in the regulation of First Amendment conduct

under the watchful eye of the judiciary, there are few

restraints placed upon the judicial branch itself when

deciding matters involving First Amendment religious

freedoms.

9

It takes little imagination to envision the outcry that

would result if a permit for a public demonstration was

sought from a small-town police chief who had reserved

discretion to select the appropriate guidelines from among

several diverse and often conflicting choices, many of

which called upon him to discern whether the applicant

was motivated by any hidden religious purpose, or what

the “reasonable observer” might surmise as to the primary

effect of the demonstration. Such a permit scheme would

be stricken as blatantly unconstitutional. Yet this Court’s

Establishment Clause jurisprudence allows just such

unbridled discretion to be exercised by the judiciary.

While this Court’s First Amendment jurisprudence

concerning licensure of speech is rooted in objective

criteria, the Lemon test is by nature essentially subjective.

See, e.g., City of Lakewood v. Plain Dealer Pub. Co., 486

U.S. 750, 758 (1988) (requiring objective guidelines to

limit discretion of the licensor).

For example, the endorsement test does not offer any

real objective standard. For the “reasonable observer”

knows only what a court posits he knows, and believes

only what the court imputes to him. In truth, the reason-

able observer prong serves no legitimate purpose other

than to cloak the subjective predilections of the court in

the garb of objectivity. As Mr. Justice Scalia has stated, the

endorsement test “supplies no standard whatsoever.”

Capitol Square Review and Advisory Bd. v. Pinette, 515

U.S. 753, 768 n.3 (1995).”

* The inherent subjectivity of the analytical tests used in this area

of the law may explain why, according to one report, “the single most

prominent, salient, and consistent influence on judicial decisionmaking

(Continued on following page)

10

Similarly, to uphold an inherently religious practice

on grounds of “ceremonial deism” is to strip it of all true

religiosity. As Justice O’Connor wrote in support of the

constitutionality of the Pledge of Allegiance, “only in the

most extraordinary circumstances could actual worship or

prayer be defended as ceremonial deism.” Newdow, supra,

124 S.Ct. at *2324 (O’Connor, J., concurring). To constitute

ceremonial deism, it “cannot be seen as a serious invoca-

tion of God or as an expression of individual submission to

divine authority.” Jd. at *2325; see also Lynch v. Donnelly,

465 U.S. 668, 716 (1984) (Brennan, J., dissenting) (sug-

gesting that the reference to God in the Pledge might be

permissible because it had “lost through rote_repetition

any significant religious content”). That is, only because

the phrase “under God” was deemed to have lost its

religious meaning, it would pass muster under the “cere-

monial deism” analysis. This test is therefore just another

variation on the decades-old theme of favoring irreligion

over religion.

As if that were not enough, the Court has also re-

served to itself the right to dispense with Lemon alto-

gether whenever it chooses to do so, leaving government

officials and the public in confusion as to what standard

will apply in the future and how it will be interpreted.

Such a system may have been appropriate for an ancient

Greek city-state seeking an oracle, but it will not suffice

was religion — religion in terms of affiliation of the claimant, the

background of the judge, and the demographics of the community.”

Gregory C. Sisk, Michael Heise, and Andrew P. Morriss, Searching For

The Soul Of Judicial Decisionmaking: An Empirical Study Of Religious

Freedom Decisions, 65 Ohio St. L.J. 491, 614 (2004).

11

for America, which boasts itself a nation of laws and not of

men.

Il. THE ESTABLISHMENT CLAUSE HAS NO

APPLICATION TO THE INSTANT CASES.

The Establishment Clause properly understood does

not apply to the instant cases at all,-as noted by Mr.

Justice Thomas in Newdow, supra, at *2328, and demon-

strated by other amici. See, e.g., Brief of Amici Curiae

Conservative Legal Defense and Education Fund, et al.,

2004 WL 2812087, *10; Brief of Amicus Curiae Eagle

Forum Education and Legal Defense Fund, 2825470, *9.

For many years, this Court recognized a jurisdictional

limitation on the application of the Clause to the states.

See, e.g., Barron v. Baltimore, 32 U.S. (7 Peters) 243, 250

(1833) (“These amendments contain no expression indicat-

ing an intention to apply them to the state governments.

This court cannot so apply them.”); Ex parte Garland, 71

U.S. 333, 397-98 (1867) (“the whole power over the subject

of religion is left exclusively to the State governments, to

be acted upon according to their own sense of justice and

the State constitutions”).

And the passage of the Fourteenth Amendment did

not alter this fact.’ See, e.g., Jaffree v. Board of School

Com’rs of Mobile County, 554 F.Supp. 1104, 1119 (D.Ala.

1983), aff’d in part, rev'd in part, 705 F.2d 1526, rev’d, 472

U.S. 38 (1985) (“The historical record clearly establishes

* It has been said that incorporation of the Establishment Clause is

“logically impossible; it would be like trying to apply the Tenth Amend-

ment to the states.” See GERARD V. BRADLEY, CHURCH-STATE RELATION-

SHIPS IN AMERICA 95 (1987).

12

that when the fourteenth amendment was ratified in 1868

that its ratification did not incorporate the first amend-

ment against the states.”); Slaughter-House Cases, 83 U.S.

(16 Wall.) 36, 74-78 (1873).

Ill, AN ALTERNATIVE TO LEMON

Given the frequent though inconsistent use of Lemon,

its longevity, and the wide acquiescence in the fiction of

incorporation, it is unlikely this Court will forego all

application of the Establishment Clause against state

action. In light of this probability, Amicus suggests the

following alternative to the Lemon test.

As a threshold matter, it is necessary to set out the

goals of a new test. First, an analytical device for deter-

mining the constitutionality of a governmental practice

under the Establishment Clause requires clarity, simplic-

ity, and objectivity. After all, the text itself is only ten

words; to require numerous different analytical tests

depending on the category of activity at issue is at best

unnecessary and at worst meaningless. Surely the drafters

did not envision or intend such complexity.

Second, the test should apply universally to all claims

brought under the Clause, whether they involve silent

* Between 1870 and 1950 the Blaine Amendment or similar

proposals, which would have made the First Amendment applicable to

the states, were considered and rejected by Congress on at least 25

occasions. See DREISBACH, supra, at 92. Obviously, had Liberals and

others believed the Fourteenth Amendment had already “incorporated”

the Bill of Rights, passage of the Blaine Amendment would have been

superfluous. See PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE

296-302 (2002). Neither did the Liberals find any legal significance to

Jefferson’s letter to the Danbury Baptists. Jd. at 302 n.39.

13

displays of religious symbols, public proclamations of faith,

or preferential financial treatment. The touchstone of true

law is universality. The ideal of “equal justice under law”

is not attainable unless the same law applies to all. See

Ashley M. Bell, “God Save This Honorable Court”: How

Current Establishment Clause Jurisprudence Can Be

Reconciled With The Secularization Of Historical Religious

Expressions, 50 Am. U. L. Rev. 1273, 1280 (2001) (suggest-

ing need for single test).

With these goals in mind, Amicus offers the following

alternative.

A. The Establishment Clause Should not Ap-

ply Absent Legislative Action.

Even if the fiction of incorporation is to be main-

tained, the plain text of the First Amendment should

nonetheless be the starting point for determining applica-

bility of the Clause. “[T]he ultimate touchstone of constitu-

tionality is the Constitution itself and not what we have

said about it.” Graves v. O’Keefe, 306 U.S. 466, 491-492

(1939) (Frankfurter, J., concurring).

The text specifically addresses a “law” respecting an

establishment of religion. It would therefore be altogether

reasonable and appropriate for this Court to restrict the

application of the Establishment Clause only to acts of a

legislative body, whether state or federal, constituting

some sort of “law,” and not to the erection of passive

displays such as those here at issue. See, e.g., School Dist.

of Abington Township v. Schempp, 374 U.S. 203, 221

(1963) (the Establishment Clause “withdrew all legislative

power respecting religious belief or the expression

thereof.”) (emphasis added). According to BLACK’s LAW

14

DICTIONARY, a “law” is “[t]hat which must be obeyed and

followed by citizens subject to sanctions or legal conse-

quences.” BLACK’S LAW DICTIONARY 795 (5th ed. 1979).

Application of this threshold requirement would

immediately dispense with cases such as McCreary

County, since it involves no legislative action. Van Orden

would also be affirmed because mere acceptance of the

monument involved no enactment of a “law.””

B. The Establishment Clause Should not Ap-

ply Absent Legal Coercion.

Prior to Everson v. Bd. of Educ., 330 U.S. 1 (1947),

protection against the threat of legal coercion constituted

the essence of the Establishment Clause. True establish-

ment at the time of the founding required actual legal

coercion, such as requiring official oaths recognizing the

king as head of the church, the funding of tax-supported

ministers, and fines for those whose children had not been

baptized. See Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part I: Establishment

Of Religion, 44 Wm. & Mary L. Rev. 2105, 2116-2119

(2003) (citing Virginia laws as representative of many

throughout the South); see also, Newdow, supra, *2331-32

(Thomas, J., dissenting) (“[t]he traditional ‘establishments

of religion’ to which the Establishment Clause is addressed

necessarily involve actual legal coercion”); Lee v. Weisman,

505 U.S. 577, 640 (1992) (Scalia, J., dissenting) (“The

coercion that was a hallmark of historical establishments

" As Chief Justice Rehnquist has counseled, “[w]hen courts extend

constitutional prohibitions beyond their previously recognized limit,

they may restrict democratic choices made by public bodies.” Newdow,

supra, at *2320 (Rehnquist, C.J., concurring).

15

of religion was coercion of religious orthodoxy and of

financial support by force of law and threat of penalty.”)

(emphasis in original).

As McConnell summarized: “In short, the laws com-

pelled religious observance, provided financial support for

the ministry, controlled the selection of religious person-

nel, dictated the content of religious teaching and worship,

vested certain civil functions in church officials, and

imposed sanctions for the public exercise of religion

outside of the established church.” Establishment and

Disestablishment at the Founding, supra, 44 Wm. & Mary

L. Rev. at 2119. These practices were unabashedly coer-

cive, and plainly violated the conscience of philosophical

dissenters.

1. The Model of Barnette

Perhaps the seminal case applying the sort of coercion

test most true to the original understanding of the Estab-

lishment Clause and the historical practice of our nation is

West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624

(1943). In Barnette, Jehovah’s Witnesses challenged a

mandatory flag salute for public school students, which

the Court found required “a compulsion of students to

declare a belief.” Jd. at 631. Failure to conform constituted

insubordination punishable accordingly.

As stated by the Barnette Court, the issue presented

was “whether such a ceremony so touching matters of

opinion and political attitude may be imposed upon the

individual by official authority under powers committed to

any political organization under our Constitution.” Jd. at

636. In striking the law, the Court famously cautioned

that “(clompulsory unification of opinion achieves only the

unanimity of the graveyard.” Jd. at 641.

16

Barnette teaches that “the Bill of Rights denies those

in power any legal opportunity to coerce that consent.” Jd.

In our free system, there is no place for forced consent: “If

there is any fixed star in our constitutional constellation,

it is that no official, high or petty, can prescribe what shall

be orthodox in politics, nationalism, religion, or other

matters of opinion or force citizens to confess by word or

act their faith therein.” Jd. at 642.

The Court ultimately held that the compulsory flag

salute violated the First Amendment because it “invades

the sphere of intellect and spirit which it is the purpose of

the First Amendment to our Constitution to reserve from

all official control.” Id.

2. Fashioning a Barnette-Type Test

Although a majority of this Court has not insisted on a

showing of coercion in an Establishment Clause challenge,

see, e.g., Engel v. Vitale, 370 U.S. 421, 430 (1962), the

element of coercion has played an important role. See, e.g.,

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310-316

(2000) (applying coercion test in addition to Lemon), Lee v.

Weisman, supra, 505 U.S. at 592 (finding “subtle coercive

pressure” in the public schools). But see Lee, 505 U.S. at

618 (Souter, J., concurring) (arguing that “this Court has

declared the invalidity of many noncoercive state laws and

practices conveying a message of religious endorsement”

and collecting cases).

Yet the refusal of the Court to require some coercive

effect in challenges brought under the Establishment

Clause accounts for much of the proliferation of such cases

17

and the resulting confusion in this area of law.” Moreover,

the absence of a requirement of some harm other than a

psychological offense has paved the way for the proverbial

“egg-shell” plaintiff, who has lost all respect for any belief

system not her own, and assumes an attitude of deep

offense by the slightest acknowledgement of any conflict-

ing beliefs. Judge Michael McConnell argues that “courts

are wasting their time when they draw nice distinctions

about various manifestations of religion in public life that

entail no use of the taxing power and have no coercive

effect. The simple answer to most such lawsuits is that the

plaintiff has no standing to sue.” Michael W. McConnell,

Coercion: The Lost Element of Establishment, 27 Wm. &

Mary L. Rev. 933, 939 (1985/86).

While the precise contours of what constitutes coer-

cion may need to be worked out over time, use of an

orthodoxy of belief standard would readily accommodate

the pluralism of belief prevalent today but allow public

officials to recognize religion without fear of a federal

lawsuit. And as Judge McConnell noted, “at least attention

again would be directed to the right question. Not what

flunks the three-part test, but what interferes with reli-

gious liberty, is an establishment of religion.” Jd. at 941.

Finally, if such a test would not offer every citizen

offended by governmental recognition of religion an

avenue of judicial relief, perhaps it would facilitate a

process whereby our increasingly pluralistic populace

” Cf. the observation of Mr. Justice Thomas in Newdow, supra: “I

conclude that, as a matter of our precedent, the Pledge policy is

unconstitutional.” Jd. at *2330 (emphasis added). Of course, Justice

Thomas went on to state that in his opinion, that precedent was

wrongly decided. Id.

18

would be required to respect differing beliefs rather than

file suit over them.

The hoped-for neutrality of the Lemon test has in

reality spawned judicially-sanctioned hostility toward

religion. Under the proposed legal coercion test, the

“benevolent neutrality” of Walz” may again become a

reality while still protecting against actual establishment

of a national religion and not unduly offending non-

adherents.

+

CONCLUSION

For the reasons stated, the Lemon test should be

overruled, and this case affirmed.

Respectfully submitted,

STEPHEN M. CRAMPTON

Counsel of Record

BRIAN FAHLING

MICHAEL J. DEPRIMO

Counsel for Amicus Curiae

* “Sho of those expressly proscribed governmental acts there is

room for r ay in the joints productive of a benevolent neutrality which

will perm:. religious exercise to exist without sponsorship and without

interference.” Walz v. Tax Comm'n of New York City, 397 U.S. 664, 669

(1970).