# Amicus Curiae Brief — Van Orden v. Perry

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0001%3A12

## Record

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

## Text

=

- “ _—- 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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0001%3A12. Public record. Not legal advice.