Amicus Curiae Brief — Van Orden v. Perry

No. 03-1500

IN THE

Supreme Court of the Anited States

THOMAS VAN ORDEN,

Petitioner,

v.

Rick PERRY. in his official capacity

as Governor of Texas and

Chairman, State Preservation Board, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

AMICUS CURIAE BRIEF OF THE

CHESTER COUNTY HISTORIC

PRESERVATION NETWORK

IN SUPPORT OF RESPONDENTS

ALFRED W. PUTNAM, JR.

Counsel of Record

D. AuictA HICKOK

DRINKER Bipptt & REATH LLP

One Logan Square

ISth and Cherry Streets

Philadelphia, PA 19103-6996

Counsel for the Chester

County Histort

Preservation Network

ST IVES BURRUPS/APPELLATE DIVISION, 1617 JFK BOULEVARD, PHILA. PA. 19103 (215) 563-9000

QUESTION PRESENTED

Does the Establishment Clause of the First

Amendment require that the Texas State Preservation

Board remove a Monument containing the Ten

Commandments from government property that has been

designated as a National Historic Landmark?

Suggested Answer: No.

QUESTION PRESENTED .....................4- i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............00ceee- iii

STATEMENT OF IDENTITY AND INTEREST OF

STATEMENT OF THE CASE ................ 2

SUMMARY OF ARGUMENT ................. 5

A. A Decision to Preserve a Monument is Not the

Same as a Decision to Build a Monument... . . 7

B. A Decision Not to Disturb an Existing Object

Does Not Constitute an “Endorsement” of the

Original Message the Object’s Creators Wished

C. The 1961 Decision to Erect the Monument Is Not

Susceptible to Challenge Under Today’s First

Amendment Jurisprudence................ 17

D. The Constitution Does Not Require That

Government Discriminate Against Religion in

Making Preservation Decisions............. 23

E. The Determination of What is Historically

Significant is Not a Decision for the Courts.. . .26

Che She eedeceeeesseovcscceses 29

TABLE OF AUTHORITIES

CASES

Beard v. Banks, 124 S. Ct. 2504 (June 24, 2004).....

Books v. City of Elkhart, 235 F.3d 292 (7th Cir.

eee Ce ek des ehh ha bee ee ene 3, 13

Braunfeld v. Brown, 366 U.S. 599 (1961) Seer eos 20

Buono v. Norton, 371 F.3d 543 (9th Cir. 2004) ...... 16

Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969 (9th

ire eh os 64 e Nab 08 6 Oe 8 15-16

City of Boerne v. Flores, 521 U.S. 507 (1997). ....... 25

Everson v. Board of Education, 330 U.S. 1 (1947)... .18

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

rs ecb oe ee be eeeeeenease 1, 15

Gallagher v. Crown Kosher Super Market, Inc., 366

EE ae ee 19-20

Gonzales v. North Township of Lake County,

Indiana, 4 F.3d 1412 (7th Cir. 1993).-.......... 16

Good News Club v. Milford Central School, 533

ks COL eke eee Ke bees dee ¥ ks 23

Hamling v. United States, 418 U.S. 87 (1974)....... 20

Lemon v. Kurtzman, 403 U.S. 602 (1971) ....... 18, 19

Lemon v. Kurtzman, 411 U.S. 192 (1973) ....... 18, 19

McGowan v. Maryland, 366 U.S. 420 (1961) ........ 20

Modrovich v. Allegheny County, 385 F.3d 397 (3d

CCE lees bee Ge een edbadadee tees s 26

Order of R. Telegraphers v. Railway Express :

Agency, Inc., 321 U.S. 342 (1944)............... 17

Penn Central Transportation Co. v. New York City,

ee ds oie i eae n ewe i 6:08 24

Pueblo of Sandia v. United States, 50 F.3d 856

Ge SE 6 ona a6 oh 0enewdscnseuiansas 25

St. Bartholomew’s Church v. City of New York, 914

oof. | errr rs se Tee Te 25

San Antonio Conservation Society, Inc. v. City of

San Antonio, 455 S.W.2d 743 (Tex. 1970) ...... 21-22

Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003) 4, 5, 18

Van Orden v. Perry, No. A-01-CA-833-H, 2002 U.S.

Dist. LEXIS 26709 (W.D. Tex. 2002) ............ 17

CONSTITUTIONS -

United States Constitution, amend.I.............. 6

Texas Constitution art. XVI .................4.. 21

STATUTES

BP es SK 60s Shdn bbs 0004 Nee beeneees 24

ps CPD 0 6-4 ho 0405008 nee ee Keeaesiees 24

Se WS 6 660 dane aennscséwendssescew 25

Tex. Gov’t Code § 443.006 ................. 4, 5, 28

Tex. Gov’t Code § 443.0152..................... 28

Tex. Gov't Code § 21G6.BGOLL.. 1... ec ccc cece 5

OTHER AUTHORITIES

Karen Armstrong, The Battle for God (Ballantine

a Ee errr eee er er 14

Jess Bravin, Commandments on Trial, Chicago

Sun-Times, April 24, 2001... .........ccceeeees 3

Commanding Presence, Eagle Magazine (March

PP e ce ee re oe ee ee 2-3

Fraternal Order of Eagles at http://www.foe.com/

ee ee re 2

iv

Duane W. Gang, Forrest Descendant Defends

Legendary Civil War General, Chattanooga

Times Free Press, August 23, 2000 ............... 9

Richard Marks, Stained Glass in England During

the Middle Ages (Univ. of Toronto Press 1993) .. . .13

Nation in Brief, The Atlanta Constitution,

PU OE ID i cant web see eeeneeceecuceu ss 8

National Register Information System at http://

www.nr.nps.gov/nriocl.htm.................... 4

Michael Parenti, History as Mystery (City Lights

Books, San Francisco 1999)................2.2.. 13

Michael Riley, Nixing Dixie, Time, August 2, 1993 ... .9

Alexander Stille, The Future of the Past (Farrar,

Straus & Giroux 2002) ..............00000. 13, 27

Texas State Preservation Board at http://

www.tspb.state.tx.us/spb/capitol/texcap.htm........ 4

United States Department of Interior, National

Register of Historic Places, National Register

Bulletin No. 15, How to Apply the National

Register Criteria for Evaluation at http://

www.cr.nps.gov/nr/publications/bulletins/nrb15 . . . . 28

Ronald C. White, Lincoln’s Greatest Speech: The

Second Inaugural (Simon & Schuster 2002) ...... 24

Warren Wolfe, Monumental Showdown has St.

Cloud roots; A Minnesota judge planted seeds for

battles over the Commandments in 1946,

Minneapolis Star Tribune, August 30, 2003........ 2

1

I. STATEMENT OF IDENTITY AND INTEREST

OF AMICUS’

The Chester County Historic Preservation Network

(“CCHPN”) is a Pennsylvania non-profit corporation formed

for the purpose of protecting and educating the public

regarding historic and cultural resources within Chester

County, Pennsylvania and its environs. Its stewardship

tasks include the preservation of buildings, structures, sites,

objects and landscape features for the benefit of present and

future generations.

The CCHPN is interested in the outcome of this

litigation as a result of its participation (also as an Amicus

Curiae) in recent litigation seeking the removal of a “Ten

Commandments” plaque affixed to the Chester County

Courthouse in 1920.“ The CCHPN believes that the

argument advanced by the petitioner in this case + which

is essentially the same as that advanced in the Chester

County case - presents a radical challenge to the way

decisions are now made regarding the historic preservation

of buildings, monuments, and other objects. Because

historical preservation is central to the CCHPN’s mission

and because the litigants in this case may not be motivated

by the same interest in and concern about historic

preservation, the CCHPN Board has authorized the filing

of this Brief.

1 As reflected in letters filed with the Clerk, the parties have consented to

the filing of this brief. The CCHPN and its counsel are the only authors of

this brief; no other person or entity contributed to the preparation or

submission of this brief in any way.

2 See Freethought Society v. Chester County, 334 F.3d 247 (3d Cir. 2003).

Both the Chester County Courthouse and the Texas State Capitol

grounds were listed on the National Register of Historic Places after the

monuments at issue were built. The Texas State Capitol grounds has

since achieved the higher historic “landmark” designation.

2

Il. STATEMENT OF THE CASE

In 1961, the Fraternal Order of Eagles (“the FOE”)®

announced its intention to donate a monument “to the

people and youth of Texas.” The FOE’s enthusiasm for

monument building was not confined to Texas, however.

Indeed, during the 1950s and early 1960s, it erected a series

of similar monuments elsewhere in the United States as a

part of its national campaign against what was then called

“juvenile delinquency.” The FOE program was originally

inspired by E.J. Ruegemer, a judge in juvenile and probate

court in St. Cloud, Minnesota. In a 1946 case, Judge

Ruegemer was confronted with a 16 year-old who had

stolen a car and struck and injured a passing priest. It

turned out that the boy had grown up in a troubled home

and had struggled with problems with his hearing and

vision. So, instead of sending the boy to the Red Wing

Reformatory, the judge sentenced the young man to learn

and live by the Ten Commandments. He then got him a job.

Warren Wolfe, Monumental Showdown has St. Cloud roots;

A Minnesota judge planted seeds for battles over the

Commandments in 1946, Minneapolis Star Tribune,

August 30, 2003. According to a tribute to Judge

Ruegemer, who went on to serve as a District Court judge,

the youth was never in trouble again. Commanding

* The Fraternal Order of Eagles - founded in 1898 and originally

comprised of actors and stage hands - is perhaps best known as the

original proponent of Mother’s Day. Yet its self-described history refers to

many other accomplishments: “a Workman’s Compensation Act, Mothers

and Old Age pensions, Social Security laws and Jobs After 40. The

modern day FOE is still fighting to liberalize present social benefits along

with combating vicious diseases plaguing mankind through their

sponsorship of the Art Ehrmann Cancer Fund, Max Bear Heart Fund,

Jimmy Durante Children’s Fund, “Doc” Dunlap Kidney Fund and the

Diabetes Fund.” http://www.foe.com/history/history.html. Theodore

Roosevelt, Warren G. Harding, Franklin D. Roosevelt, Harry S.

Truman, John F. Kennedy, Jimmy Carter and Ronald Reagan are listed

as FOE members. /d.

3

Presence, Eagle Magazine 7 (March 2002) (published in

honor of Judge Ruegemer’s 100th birthday).

The FOE made the Ten Commandments part of iis

National Youth Guidance Program only after

representatives of various Jewish, Catholic, and Protestant

organizations had concurred on a rendition of the

Commandments that could be considered “non-sectarian.”

Books v. City of Elkhart, 235 F.3d 292, 294 (7th Cir. 2000).

Originally, the FOE had planned to distribute only paper

copies of the Ten Commandments, but Cecil B. DeMille,

sensing an opportunity to combine the project with

promotion of his movie of the same name, suggested that

something more permanent be used. Jess Bravin,

Commandments on Trial, Chicago Sun-Times, April 24,

2001 at 6. Ultimately, Paramount Pictures provided the

FOE with photographs of the prop used in DeMille’s movie,

and it was used as the model for the engravings on the

monuments that were distributed throughout the United

States. Id. Several of the monuments were dedicated by the

stars of the movie, Charlton Heston, Yul Brenner, and

Martha Scott. Jd. When it was initiated, the FOE campaign

received praise from then-President Harry S. Truman and

then-FBI Director J. Edgar Hoover. Eagle, at 7.

This nationwide “juvenile delinquency” campaign came

to Texas rather late in its lifespan, when the Texas

Legislature, as a means of honoring the FOE’s work in

that field, approved the proposed donation by resolution in

1961. The monument was duly erected on government

property approximately 75 feet from the state Capitol

building. There is no evidence that the FOE’s donation,

the juvenile delinquency campaign, or the monument itself

was the subject of any controversy in 1961.

There are several other monuments on the grounds of

the Capitol. These include monuments commemorating the

heroes of the Alamo, volunteer firemen, Confederate

soldiers, Terry’s Texas Rangers, Hood’s Texas Brigade, the

Texas cowboy, veterans of the Spanish-American war (“The

4

Hiker”), veterans of the 36th Infantry, disabled veterans,

World War I, Pearl Harbor, Texas pioneer women, Texas

children, Korean War veterans and Texas peace officers.

There is also a Statue of Liberty replica (donated by the Boy

Scouts of America). Each of these monuments has its own

history. Each was promoted by some group interested in

honoring someone or something. Each, at some point before

its construction, received an approval from someone in

authority in the State of Texas.

In 1970, the Capitol and its approximately 20 acres of

surrounding land was listed on the National Register of

Historic Places. See National Register Information System,

found at http://www.nr.nps.gov/nrlocl.htm. In 1986, the

same property was declared a National Historic Landmark.

See State Preservation Board, found at http://

www.tspb.state.tx.us/spb/capitol/texcap.htm. The parties

have stipulated that the National Historic Landmark

includes the “Capitol, together with its grounds and the

monuments erected and maintained there.” Van Orden v.

Perry, 351 F.3d 173,175 n.1 (5th Cir. 2003). They have also

stipulated that “the Ten Commandments monument is an

element of a legally-protected National Historic Landmark.”

~ Id.

In 1983, the Texas Capitol caught fire, with near

disastrous result. In response, Texas established a State

Preservation Board and appointed a curator whose

qualifications and duties are defined by statute. See Tex.

Gov’t Code § 443.006. The Capitol and its grounds are

among the properties subject to preservation by the

Preservation Board and its curator. The others include the

Capitol Extension, the 1857 General Land Office Building

and certain other designated buildings together with their

contents and their grounds. http://www.tspb.state.tx.us. The

Board also operates the Bob Bullock Texas State History

Museum. Id.

For forty years, and despite the numerous visitors who

tour the Capitol and its grounds each year, the FOE

5

monument was but one of the many artifacts that signified

different contributions to the state’s history and culture. In

2001, however, a Texas resident named Thomas Van Orden

took offense at the depictions on the FOE monument and

asked the State Preservation Board to remove it, because, he

said, “Texas [had] ‘accepted’ the monument ‘for the purpose

of promoting the Commandments as a personal code of

conduct for youths and because the Commandments are a

sectarian religious code.’” 351 F.3d at 176. When the State

Preservation Board denied his request to remove one of the

monuments on the Capitol grounds,* Mr. Van’ Orden

brought suit in the United States District Court for the

Western District of Texas. When the District Court found

against him, he appealed to the Fifth Circuit Court of

Appeals, which affirmed the judgment of the District Court.

He has now sought relief from this Court.

Ill. SUMMARY OF ARGUMENT

The CCHPN believes that this case is about historic

preservation, not present-day evangelism. It recognizes that

the litigants and their many Amici in this and other similar

cases do not see it the same way, but the CCHPN suggests

that they are carrying an ongoing argument that arose in an

entirely different context into a field where it has no place

and, worse, has the potential to do great harm.

The Defendants in this case are the members of the

Texas State Preservation Board. The conduct at issue is the

decision not to alter an existing historic landmark.

Throughout this country, preservationists use public funds

to maintain all kinds of buildings, monuments, and other

objects, often on public property. Many of those were

created by religious people and some were intended to

* Texas law contemplates removal of a monument where it is deemed

“unused surplus property that is not of significance,” in which case it can

be transferred, sold, or otherwise disposed of. Tex. Gov’t Code § 443.006.

Otherwise, a monument may be removed or relocated permanently only if

it is “relocated te a prominent location.” Tex. Gov’t Code § 2166.5011.

6

convey a religious message. That is to be expected given the

history of this country and its people.

Were this Court to accept the false assumption that lies

at the heart of Petitioner’s case - that “preservation” is a

form of “endorsement” —- it will ultimately need to choose

between allowing preservation dollars to be spent

“endorsing” religious messages or requiring

preservationists to weed out history that is arguably

religious and maintain only that which is safely secular.

Present-day preservationists do neither. Nor do they wish

to. For these reasons, the CCHPN asks the Court not to

accept a false assumption that leads to a false choice.

IV. ARGUMENT

The question Mr. Van Orden has presented to the Court

is artfully phrased. He asks the Court “[wJhether a large

monument” on government property in Austin, Texas “is an

impermissible establishment of religion in violation of the

First Amendment.” His focus, in other words, is on the

monument, and whether it should be held to violate the First

Amendment.

A monument, however, is an inanimate object. It

cannot, by itself, violate the First Amendment because the

First Amendment imposes no restriction on inanimate

objects. To the contrary, the First Amendment imposes

restrictions on certain government actions. In the present

case, of course, the restriction at issue is the command that

the government “make no law respecting an establishment

of religion.” U.S. Const. amend. I. To make out an

“impermissible establishment of religion,” in other words,

Mr. Van Orden needs to identify a state actor who has

“made a law” that violates the Establishment Clause. A

monument — which cannot make_a law - is in no position to

do that on its own.

Once we turn our attention to specific state action,

however, a problem arises. Indeed, it is this problem that

7

Mr. Van Orden and his Amici seek to avoid by talking about

the monumient rather than what the government did or did

not do. By focusing on the monument, Petitioner attempts

to conflate two different state actions taken at different

times by different state actors. The ‘irst state action was the

1961 decision by the Texas legislature to accept the FOE’s

donation of the monument and the consequent construction

of the monument on the Capitol grounds. The second state

action, such as it was, was the 2001 decision by the Texas

State Preservation Board to reject Mr. Van Orden’s demand

that it dismantle and remove the monument. By casting the

issue solely in terms of the monument itself, Petitioner

hopes the Court will accept his unspoken assumption that

these two different decisions made at different times by

different state actors are, for all practical purposes, a single

decision or “law respecting an establishment of religion.” It

is a false assumption.

A. A Decision to Preserve a Monument is Not the

Same as a Decision to Build a Monument.

The fundamental error in Petitioner’s argument is his

failure to distinguish between the preservation of an object

and the original creation of that object. In the real world, a

decision to preserve is different in kind than a decision to

build.

To see the difference, let us consider how a southern

city with a racially mixed population might react to a

monument honoring Nathan Bedford Forrest. General

Forrest was one of the most gifted and courageous of

Confederate cavalrymen. He was adored by his men and, in

the decades immediately after the Civil War, was regarded

as a great hero in states where he had tenaciously resisted

Sherman’s advancing army. Before he became a general,

however, Forrest was a slave-trader. Some historians also

hold him responsible for the massacre of the predominantly

black garrison at Fort Pillow after his Army recaptured that

8

fortress in April of 1864. And, after the war, he was one of

the founders of the Klu Klux Kian.

How would a city council in a modern southern city

react to a proposal to build a monument to General Forrest?

It seems safe to assume that a project of that kind would

attract some heated opposition. Surely, opponents would

argue that General Forrest is not the kind of man their city

should want to “honor” with a new monument. His values

are not our values. We do not consider him to be a role model

for our youth. To many citizens, a decision to erect the

proposed monument would not only be inappropriate, it

would be offensive. And it is hard to see how proponents of

such a scheme could expect to carry it off.°

But now let us suppose, instead, that the Forrest

monument is already there. Say it was erected a century ago

by veterans of Forrest’s Army and has been a significant

landmark in town ever since. What does a modern city

council do when approached by a committee of community

activists who want the monument torn down? Well, that is a

very different question than the hypothetical proposal to

build a new memorial. By voting to leave the old monument

alone, the typical city councilman does not see himself as

“honoring” General Forrest or somehow endorsing General

Forrest’s racial views. To the contrary, he sees himself as

preserving a city landmark of some historical interest and,

perhaps, as remembering and respecting the perspective of

the civil war veterans who built the monument - whether or

not he himself shares that perspective. And perhaps he also

worries that a vote to “dishonor” General Forrest will be

perceived by some of his constituents as every bit as

offensive as a vote to “honor” General Forrest would be

° Which doesn’t mean they wouldn’t try. In October of 2000, Forrest

admirers dedicated a new memorial to him in Selma, Alabama. They were

met with a political firestorm of opposition, and the mayor and city

council of Selma ultimately voted to force the removal of the memorial to

a different site. See Nation in Brief, The Atlanta Constitution,

February 27, 2001, at 9A.

9

perceived by others. A vote to do nothing may well be the

least offensive choice.®

It is entirely true, of course, that monuments honoring

General Forrest have nothing to do with the Establishment

Clause. The point, for the moment, is merely that the

decision to build something is not the same as the decision to

preserve it. They are different in kind. That having been

said, however, there is no reason to tuink that the

distinction between creating and preserving would cease to

exist if we were to introduce “religion” into the hypothetical.

Suppose, for instance, that Petitioner were to file suit

demanding that the words “In God We Trust” be removed

from United States coinage? It is possible, perhaps, that he

might find a judge willing to order the mint to delete that

phrase from all our coins starting in 2005. But what are his

chances of finding a judge willing to erder the recall of all

United States coins minted since the Civil War, when the

motto was first added to the coins? Even if we concede that

Petitioner finds the old coins to be just as offensive as brand

new coins, and even though it is undeniable that the old

coins will keep turning up in his change for the rest of his

life, his “recall” case is simply different in kind than his

“mint no more” case. After all, when the government mints

a new coin saying “In God We Trust,” it is at least arguably

saying something about God. But when it declines to destroy

old coins, it isn’t saying anything at all. It is saving itself

| ® And so it has proved in Memphis, Tennessee, where there is a bronze

statue of General Forrest on horseback on Union Avenue, not far from

the General’s grave. That monument was erected in 1901 by veterans of

the Army of Tennessee. In; the late 1980s and early 1990s, a group of

community activists began a campaign to remove the monument on the

ground that it honored a racist. The campaign continued for several years

but was unable to garner any significant political support and the statue

still stands where it always has in “Forrest Park.” See Duane W. Gang,

Forrest Descendant Defends Legendary Civil War General, Chattanooga

Times Free Press, August 23, 2000, at A2; Michael Riley, Nixing Dixie,

Time, August 2, 1993, at 30.

10

time and money. And it is avoiding chaos in the numismatic

market.’

It is a version of this latter case, of course, that is

presented here. The defendants in this case - all members of

the Texas State Preservation Board - were never asked to

erect a monument or marker containing the Ten

Commandments. They are not in that business. The

monument to which Petitioner takes offense is not of their

making. They neither chose nor approved the inscription.

They have never been asked to “endorse” it. What they were

asked to do was to remove it. And that is what they declined

to do. It follews that it is their decision not to remove the

monument that is at issue in this case. That - not the

original decision to put the monument where it is - is the

government decision that Petitioner refused to accept when

he brought this case. If the defendants here acted

unconstitutionally, they did so merely by declining to

accede to Petitioner’s demand that they make a change in

a National Historic Landmark.

B. A Decision Not to Disturb an Existing Object

Does Not Constitute an “Endorsement” of the

Original Message the Object’s Creators Wished to

Convey.

In fairness to Petitioner, he does not appear to disagree

with the above. He sued the members of the State

- Preservation Board because he genuinely believes that

their decision to preserve an object is for all practical

purposes an adoption of the intentions of its creator.

Petitioner believes, in other words, that “preservation” is

* To complete the analogy, it might also come as no surprise if the

Chester County Numismatic Society - for reasons having nothing to do

with the religious views of its members - expressed alarm about the

consequences of a hypothetical “recall” case while having no view at all

about a hypothetical “mint no more” case. Coin collectors can and do

value old coins without forming any moral judgment about what is on

them.

11

essentially a form of “endorsement.” Which may be why he

and his Amici are so comfortable conflating the events of

1961 and the events of 2001.

But this perception is also an error. The recognition and

presentation of the authenticity of historic items or places is

not an endorsement of the messages they contain.

Monument-builders generally do so out of a desire to

convey a message of some kind. They may wish to “honor”

a particular leader or “remember” fellow citizens who lost

their lives in a given war or accident. Or they may wish to

record their support of, or opposition to, some great “cause”

of their time. In contrast, the motive behind a decision to

preserve a monument is a recognition of the causes that

provoked such passion at that earlier time or by those

earlier persons. It is possible to decide to preserve a

monument without either “approving” or “disapproving”

whatever its creators had in mind when they created it.

In fact, the statutory framework governing the State

Preservation Board demonstrates that the intention of the

State of Texas today is to present to its residents and visitors

an accurate depiction of its history, whether quirky or

mainstream, politically correct or not. For instance, the

monuments it preserves include a monument to Hood's

Texas Brigade, even though very few Texans still support

the cause for which General Hood’s men fought so bravely.

In other words, the values that animate the Preservation

Board - to respect a judgment made by persons of another

era that something was meaningful to them - is not the same

as an independent evaluation and endorsement of that

meaning today.

Sometimes, however, this distinction is lost -

particularly when passions are running strong. Thus, the

organizers of the campaign to tear down General Forrest’s

statue in Memphis perceived the decision to leave it

standing as an “endorsement” of Forrest’s racial views. To

them, the “preservation” of the old monument seemed just

as offensive as the creation of a new monument. And this is

12

precisely Petitioner’s argument here. He perceives the

current decision as an ongoing state endorsement of what

the monument’s creators had in mind when they created it.

He cannot separate “preservation” from “creation.” -

Petitioner is not the only person to feel this way.

Indeed, during the pendency of the court proceedings below,

another group of community activists was trying to

persuade their government to remove “longstanding”

religious monuments in the Bamiyan Valley of

Afghanistan. In that case, the people who had originally

created the offensive works were unquestionably religious

people. They had undertaken their work — the carving of two

giant Buddhas into the side of a sandstone cliff — for

religious reasons and no doubt hoped the statues would

evoke the kind of reflection, contemplation, and spiritual

growth that images of the Buddha are said to inspire among

those who are open to such inspiration. All of that was a long

time ago, however, and the people of the Bamiyan Valley

haven’t been Buddhist for a thousand years. Nevertheless,

the Muslim people of the valley had preserved and

maintained the great Buddhas that their ancestors had

built for centuries - even though their own religion

disapproved of the creation and veneration of images of

any kind. It seems these otherwise devout Muslims

recognized, as Petitioner and his Amici do not, that there

is a difference between making religious images and merely

preserving images made by one’s predecessors.

Early in 2001, however, the “endorsement” argument

that Petitioner and his Amici advance here suddenly

emerged in the Bamiyan Valley. A small but vocal group of

concerned “activists” not only took offense at the sight of the

monuments; they wanted to protect others from the same

offense. The reasonable observer cannot distinguish, they

said, between “preserving” something and “creating”

something; when you “preserve” the works of ancestors

with whom you now disagree, you necessarily “endorse”

those works. The only way to avoid “endorsement,” the

13

argument went, is to remove the monument. Leaving it

alone perpetuates - perhaps even “magnifies” — the original

wrong.® And, sad to say, the black-robed rulers of

Afghanistan ultimately bought this argument and ordered

the destruction of the giant Buddhas.

Needless to say, this way of thinking is not new. To the

contrary, rage against the monuments left b#y others runs

through all of history and has infected all sorts of otherwise

reasonable people and groups. It was a Christian mob -

enraged at the efforts to preserve pagan art and sculpture at

the Temple of Serapis (or “Seraphim”) in Alexandria - that

went on “an iconoclastic rampage” in 391 A.D. and burnt the

Temple to the ground. Unfortunately, the Seraphim also

served at the time as a kind of annex to the Great Library of

Alexandria. But much of what that Library held was no

doubt as “offensive” to the mob as the idols in the Temple -

: it may be, from their point of view, that no harm was

one.

Similarly, it was a political and religious activist named

“Blue Dick” Culmer whom Cromwell’s government

authorized to destroy the most beautiful stained glass

peony in England on the ground that the “offensive”

depicted in the glass encouraged “superstition” and

“Popery.” ”10 There was no Preservation Board in Cromwell’s

time, of course, and he probably would not have cared what

it had to say even if there had been. Thankfully Cromwell’s

government didn’t last long, but it was long enough for

Culmer to get his job done. People like Culmer don’t need

® While there is no clear evidence the Taliban considered each day the

Buddhas were allowed to stand a magnification of the initial decision,

some courts here have. See, e.g., Books, 235 F.3d at 303.

® While some historians blame the Christians for the destruction of the

entire library, see Michael Parenti, History as Mystery 96-97 (City Lights

Books, San Francisco 1999), others blame Julius Caesar or conquering

Muslims. For a balanced discussion of the question, see Alexander Stille,

The Future of the Past 256-60 (Farrar, Straus & Giroux 2002).

1° See Richard Marks, Stained Glass in England During the Middle Ages

(Univ. of Toronto Press 1993).

14

much time to do their work - which is one of the reasons

preservation so often loses out. The zealot needs only a

moment to destroy the past.

Intolerant passion is not confined to religious zealots

alone, however. In more recent times, avowedly atheistic

governments have been exceptionally diligent in destroying

buildings, monuments, and objects that reflect “offensive”

social and religious values of earlier governments and

times.’ One might mention, in this regard, the Soviet

program of systematic Church destruction in the 1930s, the

Red Guards’ campaign against “old” culture in China in the

1960s, and the destruction of much of Cambodia’s heritage

by the Khmer Rouge in the 1970s. Like Petitioner here, all

of these people were persuaded that preservation of the past

must be equated with an endorsement of that past. Because

they did not agree with the ways of their ancestors, they

thought it important to destroy their works. They could not

reconcile their present views with the preservation of objects

that reminded them that their ancestors had different

views.

Fortunately, this is not the way most Americans think

about the past. To the contrary, public and private

institutions throughout the United States devote

substantial resources not only to preserving buildings and

monuments but also to informing and educating the public

about those objects, the people who made them, and the

times they lived in. Most of those public and private

institutions do not accept the proposition that when they

decide to preserve an object, they somehow “endorse” the

values of its creators.

And - for the most part - those courts that have

addressed this question specifically have been able to grasp

"! As Karen Armstrong points out ir her history of fundamentalism, The

Battle for God 16-17 (Ballantine Books 2000), modern secularism can be

“just as ferocious” as some medieval religions were and, ironically, has

itself “been an important factor in the rise of militant fundamentalism.”

~

15

the distinction. Certainly Judge Becker understood it and

embraced it in Freethought Society v. Chester County, 334

F.3d 247, 261-62 (3d Cir. 2003) although he still felt

compelled to consider the case under the “display” analysis

that has been developed outside of and without reference to

the preservation context. Id. at 261-70. Similarly, the Court

of Appeals for the Ninth Circuit showed that it understood

the distinction in upholding a present day governmental

decision to preserve a sacred tribal site. “Defendant’s policy

does not convey endorsement or approval of the Tribes’

religions,” the Court held, going on to state what should be

obvious to any neutral observer:

Because of the unique status of Native American

societies in North American history, protecting

Native American shrines and other

culturally-important sites has historical value for

the nation as a whole, much like Greece’s

preservation of the Parthenon, an ancient Greek

temple of worship. Similarly, because of the central

role of religion in human societies, many historical

treasures are or were sites of religious worship. The

Establishment Clause does not require governments

to ignore the historical value of religious sites.

Native American sacred sites of historical value are

entitled to the same protection as the many

Judeo-Christian religious sites that are protected

on the NRHP, including the National Cathedral in

Washington, D.C.; the Touro Synagogue, America’s

oldest standing synagogue, dedicated in 1763; and

numerous churches that played a pivotal role in the

Civil Rights Movement, including the Sixteenth

Street Baptist Church in Birmingham, Alabama.

16

Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 976 (9th Cir.

2004).'?

Which is why - Petitioner’s protestations to the

contrary notwithstanding - no reasonable ohserver

believes that Texas’s preservation of the FOE mosument

means that Texas has taken an official position on, for

example, the making of graven images or, for that matter,

the keeping of the Sabbath. After all, if Texas is really

serious about graven images, what is the Goddess of Liberty

— representing Pallas Athena - doing on the top of the Texas

Capitol? And how can the FOE monument’s putative

“instruction” to “remember the Sabbath to keep it holy”

be squared with Texas’s present-day policy on the Sunday

activities of the Dallas Cowboys and their fans? All of which

explains why most Americans do not accept the view that

refusing to remove a monument is identical to “endorsing”

what that monument says. To the contrary, most Americans

know that it is possible to preserve and respect the works of

one’s ancestors without endorsing them. It is true the

Taliban never understood that. But we are not the Taliban.

And the Constitution does not require that we behave as if

we were.

‘2 Not all Ninth Circuit panels share this perception, however. In Buono

v. Norton, 371 F.3d 543, 548-50 (9th Cir. 2004), a cross had been placed on

federal land in 1934 by the Veterans of Foreign Wars to honor veterans

who had died during World War I (as explained in a plaque nearby) and

had been designated as a federal war memorial by the United States

Congress. In that case, the Court of Appeals concluded that the

designation of the cross as a war memorial did indeed “endorse”

Christianity. Jd. at 550. For one reason or other, it seems that some

courts cannot tolerate the preservation of crosses as readily as they can

accept preservation of other objects. See, e.g., Gonzales v. North Township

of Lake County, Indiana, 4 F.3d 1412, 1422 (7th Cir. 1993) (specifically

disagreeing with the contention that “|t}he longer the cross is displayed in

the Park, the more the effect is to memorialize rather than sermonize.”)

17

C. The 1961 Decision to Erect the Monument Is Not

Susceptible to Challenge Under Today’s First

Amendment Jurisprudence.

But what about the 1961 decision to accept the

monument in the first place? Can Petitioner try to “get

by” the preservation question he presented in 2001 and

litigate instead a challenge to what the Texas legislature did

forty years ago? Occasionally, courts have seemed to allow

plaintiffs to do this, and, in the process, have applied today’s

law to yesterday’s events. This is the wrong analysis,

however, for at least three reasons.

First, if this is turned into a case about what the Texas

Legislature did in 1961 - as opposed to what the State

Preservation Board declined to do in 2001 —- then all the

rules and policies that prohibit the delayed assertion of state

claims come squarely to the fore. If Petitioner - or anyone

else for that matter — had a quarrel with what the legislature

did in 1961, why wait until now to assert it? The point was

not lost on the District Court - see 2002 U.S. Dist. LEXIS

26709 at *8-*9, and - once the question is limited to the

events of 1961 — neither should it be lost on this Court. As

this Court put it in a very different context some sixty years

ago:

Statutes of limitation, like the equitable doctrine of

laches, in their conclusive effects are designed to

promote justice by preventing surprises through the

revival of claims that have been allowed to slumber

until evidence has been lost, memories have faded,

and witnesses have disappeared. The theory is that

even if one has a just claim it is unjust not to put the

adversary on notice to defend within the period of

limitation and that the right to be free of stale

claims in time comes to prevail over the right to

prosecute them.

Order of R. Telegraphers v. Railway Express Agency, Inc.,

321 U.S. 342, 348-49 (1944).

18

In the present case, the inevitable decay of a record over

time has given rise to the dispute about whether the “brief”

statements located were sufficient to demonstrate a secular

purpose or were instead “a sham.” Compare 351 F.3d at 179

with Pet. Br. at 21. In actuality, such facts as the parties

have been able to surface evidence only a lack of controversy

over a decision that was unremarkable at the time. Nor can

the blanks in the record then be filled in today.

Second, even if this Court were to decide it could

discern the “true” motivation behind the events of 1961, it

would need to decide which of its “precedents” should apply

to those events. And, to be blunt, this question is more than

a little awkward. The Establishment Clause, to be sure, has

been in the Constitution since 1791. But the idea that that

clause imposes a Constitutional restriction on a legislature’s

supposed “endorsement” of a religious text or sentiment is

of much more recent vintage. And the fact is that the Texas

Legislature of 1961 - whatever its “real” motive was in

accepting the donation of the FOE monument - cannot

fairly be accused of “making a law respecting the

establishment of religion” as those words were understood

by this Court in 1961.

It is worth noting, in this regard, that Petitioner has

cited only a single case that was decided before 1961:

Everson v. Board of Education, 330 U.S. 1 (1947). Lemon v.

Kurtzman, the decision upon which the Fifth Circuit Court

of Appeals’ decision rested - and which animates almost all

of the briefs filed by Petitioner's Amici - was decided in

1971. 403 U.S. 602 (1971) (“Lemon I”). And we know that

that case cannot be applied to government decisions made in

1961, because this Court has already said so. See Lemon v.

Kurtzman, 411 U.S. 192 (1973) (“Lemon II”). The question

presented in Lemon II was whether Lemon I should be

applied retroactively. The Court held that it should not. So

19

we cannot pretend that that question is somehow open.’® It

would seem to follow, then, that if this Court plans to

adjudicate a decision made by the Texas legislature in 1961,

it will need to consider what it is that made that decision

unconstitutional when it was made.

In considering that question, it is surely relevant that

no one in the State of Texas perceived the erection of the

monument in 1961 as raising a constitutional question. The

dearth of legislative controversy — which the Petitioner cites

as evidence of the “sham” and “pretext” in which the

legislators engaged — has a much simpler explanation: the

understanding of the First Amendment in 1961 was not

what it is today, and no one thought that the receipt of a

monument depicting the Ten Commandments on its face

would be viewed as an establishment of religion. And that,

indeed, is exactly what the cases decided by this Court in

1961 demonstrate.

For instance, while Petitioner argues in his brief that

“any law” that imposed the Commandment to keep the

Sabbath holy “would unquestionably violate the

Establishment Clause,” see Pet. Br. at 24, the fact is that

back in 1961 this Court upheld Sunday closing laws in no

less than three different cases. The 1961 understanding of

the Establishment Clause is illustrated by Chief Justice

Warren’s observation in one of those cases:

We are told that those provisions forbidding certain

activities to be conducted within a set distance from

a place of public worship are especially devoted to

maintaining Sunday as the Sabbath. But because

the State wishes to protect those who do worship on

8 It should be conceded that much like Petitioners’ many Amici, the

CCHPN’s counsel, Drinker Biddle & Reath LLP, likes to cite Lemon I

(which it won) rather than Lemon II (which it lost). Losing a case,

however, does not mean one can pretend it was never decided or that it

does not appear in the published decisions of this Court.

20

Sunday does not mean that the State means to

impose religious worship on all.

Gallagher v. Crown Kosher Super Market, Inc., 366 U.S.

617, 627 (1961)."*

Now it might well be both educational and entertaining

for this Court to try to imagine itself as the Court of 1961

and to ponder how it might have dealt with a challenge to

the resolution of the Texas legislature to accept the FOE

monument had anyone thought to make such a challenge.

But it is plainly the wrong task in this case. The fact that the

1961 Texas legislature did not violate any Constitutional

precept as the Constitution was understood in 1961 is not an

argument for applying 1961 laws; it is an argument for not

adjudicating 1961 decisions over forty years after they are

made.!°

Third, if this Court were to decide to “skip” the

preservation decision and go back to consider the older

decision to pass the resolution accepting the FOE donation,

it would mean that the Court has accepted the erroneous

14 The other cases were McGowan v. Maryland, 366 U.S. 420 (1961) and

Braunfeld v. Brown, 366 U.S. 599 (1961).

15 This Court wrestles fairly regularly with the rare instances in which it

is appropriate to require a state to accord deference to this Court’s

changed interpretations of what is and is not constitutional. Compare,

e.g., Beard v. Banks, 124 S. Ct. 2504 (June 24, 2004) (holding that Mills v.

Maryland, 486 U.S. 367 (1988) may not be applied retroactively to provide

relief to a habeas petitioner under the analysis set forth in Teague v.

Lane, 489 U.S. 288 (1989)) with Hamling v. United States, 418 U.S. 87

(1974) (applying the standard of obscenity articulated in Miller v.

California, 413 U.S. 15 (1973), decided while Hamling was on direct

review). But the interests in finality and federalism that undergird the

Court’s reluctance to find exceptions to Teague or to apply Lemon I

retroactively at a minimum counsel against examining the decision made

by the State of Texas in 1961 under today’s interpretation of the First

Amendment.

21

argument that any decision made about preserving an object

necessarily entails “endorsement” of that object and its

content. By accepting “proof” of what the Texas Legislature

intended in 1961 as probative of what the State

Preservation Board was doing in 2001, the Court

necessarily reduces preservation itself to a sham - which,

of course, is exactly what Petitioner and his Amici say it is.

Contrary to Petitioner’s implication, however, Texas’s

commitment to preservation is anything but pretextual. In

fact, it is demonstrably both long-standing and

constitutional. At the time when the monument was

received, three separate constitutional provisions of the

Constitution of 1876 “expressed the obligation of the

government to preserve the evidences of Texas’ historical

heritage.”*© San Antonio Conservation Society, Inc. v. City of

San Antonio, 455 S.W.2d 743, 746 (Tex. 1970). To achieve

tax exempt status in Texas, a charity must not only serve

the public good, but assume “to a material extent that which

otherwise might become the obligation or duty of the

community or state.” Id. The Texas Supreme Court has

found that historic preservation satisfies the requirement.

In the process, it recounted some of the preserved sites and

what they meant to Texas history:

Palo Duro Canyon State Scenic Park and the

Meridian State Park preserve the prehistoric and

Indian eras. Indianola State Historic Park is the site

of Spanish and French settlements. Mission San

Francisco de los Tejas State Historical Park marks

the place of the first Spanish missions established in

® Two of the three sections, those providing for a commissioner of

Insurance, Statistics and History (former Art. XVI, sec. 38) and regarding

historical records, rolls and documents (former Art. XVI, sec. 45) have

since been removed. Art. XVI. Sec. 39 is still a part of the Constitution,

however. It provides that the “Legislature may, from time to time, make

appropriations for preserving and perpetuating memorials of the history

of Texas, by means of monuments, statues, paintings and documents of

historical value.” Id.

22

East Texas in 1690. San Jose Mission State and

National Historic Site preserves the mission

established in 1720 during Spain’s great colonial

power.

Id. at 747.

If this Court were to ignore preservation as

preservation and, instead, go back to evaluate the original

decision to build a building or create an object, much of what

Texas seeks to preserve will ultimately need to be

demolished. Certainly neither the Texas nor the California

Spanish missions will survive the new judicial wrecking ball.

Those places meet all the criteria Petitioner wishes to

establish here; they are overtly and unambiguously religious

— in fact, they (unlike the Ten Commandments monument)

are facially sectarian. No one has to research scriptural

translations to recognize that the missions are exclusively

Roman Catholic. And, lest there be any doubt as to what is

at issue here, one of Petitioner’s Amici has just mounted

such an assault on federal efforts to preserve the historic

missions of California. See Doe v. Norton, 1:04-cv-02089-RJL

(D.D.C., Unredacted Complaint filed under Seal Dec. 2,

2004) (challenging the decision of the federal government to

bear a portion of the cost - through historic preservation

funds - of ensuring the structural integrity and restoring

the artwork of California’s 21 historic missions).’’ All of

which, with all due respect, is the very best reason to

evaluate preservation decisions for what they are -

preservation decisions — and not to try to apply present

day law and prejudices to the original construction or

creation of objects long ago.

17 As Plaintiffs in that case put it: “By providing federal funds only for

the restoration and repair of Catholic missions (and their associated

religious artwork and artifacts) and not secular or other non-Catholic

sites, artwork, or artifacts, the Act defines eligibility for federal benefits

with reference to religion, and is therefore non-neutral both among

religions and between religion and non-religion, in violation of the

Establishment Clause.” Redacted Complaint, 1 29.

23

D. The Constitution Does Not Require That

Government Discriminate Against Religion in

Making Preservation Decisions.

What Petitioner seeks would impose an additional filter

for all preservation decisions, one that excludes religious

objects and texts per se. This is not only substituting judicial

appraisal of historical significance and aesthetic value for

that of experts such as the Curator contemplated by the

Texas legislature, it is also singling out religion for especial

onus. But it is well-settled that religious thoughts and ideas

are not constitutionally disfavored. See Good News Club v.

Milford Central School, 533 U.S. 98, 111 (2001). The

Constitution neither demands nor tolerates antipathy

toward religion. As Petitioner recognizes, this Court’s

jurisprudence equally forbids a governmental purpose to

“disapprove of religion.” Pet. Br. at 20 (quoting Edwards v.

Aguillard, 482 U.S. 578, 585 (1987)). Imposing Petitioner’s

requirement that only secular objects can be worthy of

preservation would impose just such unconstitutional

governmental disapproval. Recognizing that our heritage

has been impacted by diverse ideas, even those that are

disturbing, is inherently an objective exercise: it does not

opine on how the world should be, but recognizes how

certain people or movements or events were and the places

and circumstances in which they occurred. Such objectivity

is the very essence of the neutrality the Constitution

requires and protects.

Now the fact is that this country’s history includes the

history of religious people, many of them undeniably

“sectarian” in one way or another. While the missions in

Texas and California are obviously Roman Catholic, Quaker

meeting houses and documents in Pennsylvania just as

obviously are not. Similarly, the Puritans left Puritan

objects and monuments behind them. All these people

were who they were. Those who try to preserve their

works cannot be expected to edit out the religious parts to

24

render our forebears more palatable to Petitioner and his

Amici.

Moreover, elected leaders voice religious thoughts and

ideas all the time. They even do so in public places and on

public occasions. The greatest speech ever given by an

American president was delivered by Abraham Lincoln upon

the inauguration of his second term. His thesis was that the

Civil War could only be understood as the judgment of God

upon the national sin of slavery. He quoted Genesis 3:19,

Matthew 7:1, Matthew 18:7, Hebrews 12:6 and Psalms

19:9.'° And the whole thing - every word - is engraved on

the wall of the Lincoln Memorial. Petitioner may well find

the patently religious aspects of this speech to be

“offensive.” But his countrymen do not. And no judge has

yet summoned the courage to order it redacted.

That the government can and does preserve existing

buildings, monuments, or markers is a universally accepted

proposition. See Penn Central Transportation Co. v. New

York City, 438 U.S. 104 (1978).'® Surely it is no surprise that

‘® For an exhaustive analysis of the religious roots of and the theological

argument contained in Lincoln’s Second Inaugural, see Ronald C. White,

Lincoln’s Greatest Speech: the Second Inaugural (Simon & Schuster

2002).

18 The Congressional findings that preface the National Historic

Preservation Act begin with these:

(1) the spirit and direction of the Nation are founded upon and

reflected in its historic heritage;

(2) the historical and cultural foundations of the Nation should be

preserved as a living part of our community life and development

in order to give a sense of orientation to the American people;

(4) the preservation of this irreplaceable heritage is in the public

interest so that its vital legacy of cultural, educational, aesthetic,

inspirational, economic and energy benefits will be maintained

and enriched for future generations of Americans;

16 U.S.C. § 470. On the basis of those findings, Congress developed its

preservation policy, to be carried out “in cooperation with other nations

and in partnership with the States, local governments, Indian tribes, and

private organizations.” 16 U.S.C. § 470-1. As part of that policy, the

National Register of Historic Places was established to register “districts,

25

the United States government and state and local

governments spend tax dollars every day on the

preservation of all sorts of objects. These objects include

Bibles, prayer books, totem poles, religious statues, sacred

clothing, churches, meeting houses, burial mounds,

paintings - and all kinds of inscriptions, markers, plaques

and monuments. And the Library of Congress and the

Smithsonian Institution are full of “offensive” objects the

government works very hard to preserve. And no one thinks

that the government acts unconstitutionally by doing what

it does. The Constitution does not impose an affirmative

duty upon the government to weed out the “religious” works

of the past and preserve only those that are religion-free.

Like Texas, most preservationists throughout the

country make decisions with a blind eye to religion.

Indeed, sometimes historic status can be a burden for a

property owner, and that burden - like the benefit — applies

to religious properties or property owners as it does for

anyone. See, e.g., City of Boerne v. Flores, 521 U.S. 507

(1997) (unconstitutional to apply a different standard of

scrutiny to facially neutral historic district building

restrictions); St. Bartholomew’s Church v. City of New

York, 914 F.2d 348 (2d Cir. 1990) (church subject to

landmarks law); Pueblo of Sandia v. United States, 50

F.3d 856 (10th Cir. 1995) (government required to consider

religious and cultural significance before declining to

register site as historic). History is found where it is

found. The Old North Church in Boston is indisputably a

“religious” building. It was also recently restored with

federal dollars. That was money well spent. And there was

nothing unconstitutional about it.

sites, buildings, structures, and objects significant in American history,

architecture, archaeology, engineering and culture.” 16 U.S.C.

§ 470a(a)(1)(A).

26

E. The Determination of What is Historically

Significant is Not a Decision for the Courts.

But does the FOE monument really have any historic

value? It is a fair question. For even if the logic of

Petitioner’s argument could justify the destruction of the

Buddhas of Bamiyan, seventeenth century Spanish

missions, Old North Church and the Lincoln Memorial, it

is true that Petitioner himself has chosen a less exalted

target. The FOE Memorial is not all that “historic.” And it

isn’t even one of a kind.

It does not follow, however, that the Texas State

Preservation Board erred when it decided to preserve the

monument. Just as Abraham Lincoln is part of our history,

so are Judge Ruegemer and Cecil B. DeMille. Markers

evidencing twentieth century enthusiasm for the Ten

Commandments tell their own stories of their own times.

The marker affixed to the Chester County Courthouse in

1920 was part of a campaign by a liberal evangelical

organization known as the International Reform Bureau.

Led by a former protégé of the great abolitionist preacher

Henry Ward Beecher, the IRB was devoted te a number of

liberal causes including the adoption of Child Labor Laws,

the ratification of the League of Nations Treaty, and a

proposed Constitutional Amendment to prohibit the use of

public monies in “sectarian” (by which was meant Roman

Catholic) schools. Its enthusiasm for the Ten

Commandments reflected both its strong Sabbatarian

views and its advocacy of universal or “international” law,

which, it thought, the Ten Commandments represented.”°

Judge Ruegemer, Cecil B. DeMille and the FOE

campaign come a generation later and reflect a curious

mid-century solution for juvenile delinquency. Judge

2° The record of the IRB was originally proffered to the District Court for

the Western District of Pennsylvania in Modrovich v. Allegheny County,

the decision of which was affirmed by the Third Circuit Court of Appeals

at 385 F.3d 397 (3d Cir. 2004). In point of fact, each monument and each

plaque on each historic landmark has its own story.

27

Ruegemer’s perception of the problem - using moral suasion

and a job to counteract an underprivileged childhood rather

than relegating a youth to a Reformatory - reflects the

liberal optimism of the 1950s. It is true that the social

activism of the IRB and the reformers of the 1950s was often

informed by their religious views. As, indeed, was that of

notable abolitionists and suffragists in an earlier era. But is

it intellectually honest to affirm the social change but deny

that its proponents were ever prompted by religious

motives? Respectfully, the impulse to eliminate any and all

evidence that then might have been different from now is

exactly the kind of impulse that a State Preservation Board

ought to be resisting.

So is the FOE monument worth preserving? There are

really two answers to that question. The first is suggested by

Alexander Stille in The Future of the Past at 256-60. In

discussing the destruction of so many ancient texts at the

Great Library of Alexandria - a loss that he puts at forty

texts lost for each one saved — Stille doesn’t blame Christian

or Muslim mobs as much as the copyists trying to preserve

the texts. It seems that papyri naturally tend to degrade

over time and the copyists had a tendency to copy onto new

papyri only those texts that they thought worth preserving.

As a result, those they considered less important or useful

did not survive. The tragedy is that, in retrospect, the

copyists’ judgment as to what was not worth preserving

almost certainly does not coincide with our own. It seems

that what we value changes over time. Perhaps the Texas

State Preservation Board knows that. Most preservationists

do.

Which brings us to the second answer to the question

whether the FOE monument is worth preserving, which, it

turns out, is itself a question: Who decides? Petitioner seems

to believe that judges decide. And it may be that that answer

has a certain appeal to judges, or at least to some of them.

But it is not the right answer. It may well be that the

preservationists will get the answers wrong from time to

time, just as the ancient copyists did. But their bias is a bias

28

in favor of preservation. It is not a bias for or against any

particular religious view. And it is to them - not to the

federal judiciary - that our elected representatives have

entrusted preservation decisions.

Nor have they unleashed untrained persons to make

haphazard decisions without parameters or guidance. The

Department of Interior has established extensive criteria

that govern federal, state, and local preservation decisions.

There are specific instructions for “how to evaluate a

property within its historic context,” including a long list

of “areas of significance.””! By applying the same criteria

to religious buildings, markers, and objects that they

apply to non-religious buildings, markers, and objects,

preservationists seek to ensure, insofar as is possible, that

what future generations view accurately reflects the history

it purports to represent.” With all due respect, the decision

to allocate such determinations to preservationists and

curators is the right decision. But even if it were in doubt,

it is a decision this Court should respect. The Texas State

Preservation Board acted within the authority given to it by

the people of Texas.” Petitioner has given this Court no

good reason to countermand their judgment.

21 See United States Department of Interior, National Park Service,

National Register Bulletin No. 15, “How to Apply the National Register

Criteria for Evaluation” at http://www.cr.nps.gov/nr/publications/

bulletins/nrb15/.

22 In the present case, the Capitol grounds were part of the Capitol and

the monument part of the grounds when the Capitol was listed on the

National Register. As such, it is much like a notch in an old gun butt. One

aoes not “preserve” the gun butt by removing the notch. To the contrary,

the notch is part of the history of the gun. Eliminating it does not

“restore” the gun, it changes it — for the worse - by eradicating a part of

its history. Or that, in any case, is how a preservationist sees the question.

23 By statute, it is a Curator (whose qualifications and duties are defined

by law, see Tex. Gov't Code § 443.006) who is vested with the

responsibility to acquire and maintain items of historical significance,

among them monuments - defined by Texas law as “a marker, memorial,

statue, or other commemoration of a person, organization, or event.” Tex.

Gov’t Code § 443.0152.

Vv. CONCLUSION

The Establishment Clause is not a directive to federal

judges to become Red Guards in black robes and root out all

evidence of our ancestors’ religious thoughts and ideas. In

fact, the United States Constitution says nothing at all

about which remnants of the past should be kept, and

which, if any, discarded. Preserving history has nothing to

do with “endorsing” any particular ideology; it is a good in

itself. The Fifth Commandment tells us “to honor thy father

and thy mother.” If the people of Texas wish to keep that

commandment -— and they do - the Constitution cannot even

plausibly be read to stand in their way.

Respectfully submitted,

Alfred W. Putnam, Jr.

D. Alicia Hickok

DRINKER BIDDLE &

REATH LLP

One Logan Square

18th and Cherry Streets

Philadelphia, PA 19107-3496

(215) 988-2700

Counsel for Amicus Chester

County Historic Preservation

Network

Dated: January 28, 2005