Amicus Curiae Brief — Van Orden v. Perry

No. 03-1500

IN THE

Supreme Court of the United 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

BRIEF OF AMICUS CURIAE EAGLE FORUM EDUCATION &

LEGAL DEFENSE FUND IN SUPPORT OF RESPONDENTS

PHYLLIS SCHLAFLY DOUGLAS G. SMITH

EAGLE FORUM EDUCATION & Counsel of Record

LEGAL DEFENSE FUND KIRKLAND & ELLIS LLP

7800 Bonhomme Avenue 200 East Randolph Drive

St. Louis, MO 63105 Chicago, IL 60601

(314) 721-1213 (312) 861-2000

Counsel for Amicus Curtac

January 28, 2005 ——

W N Erte s PRINTING ( IN (202) 789 0096 WASHINGTON, OD C 20001

QUESTION PRESENTED

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

presenting the Ten Commandments, located on government

property between the Texas State Capitol and the Texas

Supreme Court, is an impermissible establishment of religion

in violation of the First Amendment.

il

TABLE OF CONTENTS

Page

a. cestouisnonensanies ii

MI nos ccceencnsonsncosescsovercsvosesocsesesess iv

INTEREST OF AMICUS CURIAE .....0000......ccceceeeeeeeeeeeeeeees l

SUMMARY OF ARGUMENT ..0.......::cccssssssssssssssssesessseeeseeees 2

ES 3

I. cccsmensnntennenensoncooncees 4

I. The Lemon test is inconsistent with the original

meaning of the Establishment Clause and has

saa caniessnnsensenonsnnens 4

A. The Lemon test has caused confusion among

Is esesnccnee 5

B. The lower courts invoking Lemon have

prohibited religious expression that the

Framers never thought constituted an

“establishment” of religion. .....................ccceeeeeee 7

C. The Lemon test is based on a flawed historical

ial ccnerrsarncndemcesuendsuserencceresecoece 8

Il. The Establishment Clause was originally

understood as a federalism provision........................ 10

A. The Establishment Clause prohibits federal

interference with state establishment of

TTT calieicainctntesenensncsesopseovoesooserecoes 10

B. Recognition of the jurisdictional nature of the

Establishment Clause would be consistent

with this Court’s jurisprudence enforcing

other aspects of the federal structure................... 19

Il. Even under the Lemon test, the Establishment

Clause does not prohibit displays that have both

religious and historical significance......................... 22

iil Ww

TABLE OF CONTENTS (Cont.) TABLE OF AUTHORITIES

Page Page(s)

A. Displays of the Ten Commandments have Cases

both religious and historical significance............ 22

; he ACLU t . M

B. The test under Lemon is an objective one. .......... 25 C p Soe — : mee — _—— Jom -

Se Wiis ciiciiciniceieicsitetsisipneiclianapeisecietasiniidenidialaaadicaadiibalin 27

ACLU of Kentucky v. McCreary County, Kentucky,

361 F.3d 928 (6" Cir. 2004).....c.cccccccccssesseeeseeseeoees 27

Agostini v. Felton,

ee ee a iisniceiinicssiliiisididaneesanacinitiadians 5, 22

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

Francisco,

277 F.3d 1114 (9" Cir. 2002).......cccccccccesesesseeeeeeeeee 6

Buono v. Norton,

371 F.3d 543 (9™ Cir. 2004)... cccccccecesececeeeeesveeeeee 7

Cantwell v. Connecticut,

A A iisnirisiissersntciadiesntittenctinnicsianiandanlidists 19

Capitol Square Review & Advisory Bd. v. Pinette,

ee ey ee icesatttneninncieninitacntaaasans 7, 24, 25

City of Elkhart v. Books,

Be ek Se I ccicscsenscicdinncensiiadidiidcantegiantidish 23

Comm. for Pub. Ed. & Religious Liberty v. Regan,

I ie I icccicienenncessiinercdinioneninenstie 4,27

Corp. of the Presiding Bishop of the Church of Jesus Christ

of Latter-Day Saints v. Amos,

le Br i itisictiniibisaiincniainiesapaipaieipienatiaiiniiaiel 4

County of Allegheny v. ACLU,

Pe re Se iccisscccciticspnssiieasiinmaieaninnn 4, 24, 25

Vv

TABLE OF AUTHORITIES (Cont.)

Page(s)

Doe v. Beaumont Indep. Sch. Dist.,

240 F.3d 462 (5" Cir. 2001).....c.ccccccccccseseeseseeseseeees 6

Edwards v. Aguillard,

Se tS cdccncsctntescndennsitininsnessaninii 7, 23, 25

Elk Grove Unified Sch. Dist. v. Newdow,

7) Ge. Tanne 4,10, 11,19

Engel v. Vitale,

i iiienitiisiisatisisdasceisinaitiininndiiucin 7, 22

Everson v. Bd. of Educ.,

es i tissiniieiiennindciisiciitesekiniaiinimnadindads 8, 16

Ex parte Garland,

Fe es a itihiciiistcaaeinassesiaiitsiaiiniisaiialmaninieiin 21

Gillette v. United States,

a I I Ce ii citicinishisicsideisddetseniinassadaiiieasigileis 9

Gregory v. Ashcroft,

Se ei Ee ikccuncinctitcictiindentciinseninsibnniindanite 20

Lamb's Chapel v. Center Moriches Union Free Sch. Dist.,

ee ee icitnrsiienvisinninccninninnsannintaiianctedinani 4

Lee v. Weisman,

Es cee I inictnicseniasioviniensiinneiadenitindnennedi 4,10

Lemon v. Kurtzman,

i, CITT sicnscccestenisiconietieesiccastnmeedhianbenedeste 5,9

Lynch v. Donnelly,

ey ee citrchevssscinsconsinnniesancineiant passim

vi

TABLE OF AUTHORITIES (Cont.)

Page(s)

M’Culloch v. Maryland,

17 U.S. (@ Wheat.) 316 (1819). .......................00000. 20

Marsh v. Chambers,

I: tt 22, 23, 24

McCollum v. Bd. of Educ.,

Be ee I ciocteitieialiiinsslaiie ait ataieacianinaaaaciianias 7

New York v. United States,

Be es Be icccicccesecswassniestenounenennnnndiien 20, 21

Newdow v. United States Congress,

328 F.3d 466 (9" Cir. 2003), rev'd,

Se Os 7,14

Printz v. United States,

I Re a et 20

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

nS ii 4

Sante Fe Indep. Sch. Dist. v. Doe,

I: ha 4, 7, 25, 26

School Dist. of Abington Township v. Schempp,

es ee icichceutectedidasiiitieanitendatenenacl passim

Stone v. Graham,

gE Ee ea 23, 24

Trammel v. United States,

| ___ NT TRRE ea a 21

United States v. Lopez,

es EE ricasisitienentoncarneniiniisceeantianttisastinitii 20, 21

vil

TABLE OF AUTHORITIES (Cont.)

Page(s)

United States v. Morrison,

I al 20, 21

Van Orden v. Perry,

251 F.3d 173 (5™ Cir. 2003)........cccccccececeeeee 3, 24, 26

Wallace v. Jaffree,

Os I lacie cada ataicaieadiansil passim

Walz v. Tax Comm'n,

ee es netnnsntiotssniimnmmnaninies 5

Wynne v. Town of Great Falls, South Carolina,

ye PL gl te ee 7

Zorach v. Clauson,

ee a ccccnnssiniescinninaniaieimseniiniaadaianmn 22

Constitutional Provisions

ee Gy 8 y

I I Be MI, BE sccnesinicccenensicsiiiaiisilasetiiaiinaiin 12

lee RO Gy FR : . | enon 12

(A 0 Ul RO) FE 12

I: a i acai a lela 10, 14, 18

Vill

TABLE OF AUTHORITIES (Cont.)

Page(s)

Other Authorities

AKHIL AMAR, THE BILL OF RIGHTS: CREATION AND

RECONSTRUCTION (1998) ..0.0...00000000000. 12, 15, 16, 21

ANNALS OF CONG. (Joseph Gales ed., 1789)............... 13, 18

CHESTER JAMES ANTIEAU ET AL., FREEDOM FROM

FEDERAL ESTABLISHMENT: FORMATION AND

EARLY HISTORY OF THE FIRST AMENDMENT

RELIGION CLAUSES (1964) ...0..........:cccccceeeeeeeseeeees 18

GERARD V. BRADLEY, CHURCH-STATE RELATIONSHIPS IN

ET ae ere ae OE a 11,15

David O. Conkle, Toward a General Theory of the

Establishment Clause,

ee Ie Oy ice Ce OEP CR cccccesccscitosencssssnseces 15

DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS:

THE FEDERALIST PERIOD 1789-1801 (1997)......... 18

THE DEBATES IN THE SEVERAL STATE CONVENTIONS

(Jonathan Elliot ed., 2d ed. 1881) .........00......... 13

DONALD L. DREISBACH, THOMAS JEFFERSON AND THE WALL

OF SEPARATION BETWEEN CHURCH AND STATE

Donald L. Dreisbach & John D. Whaley, What the Wall

Separates: A Debate on Thomas Jefferson's ‘Wall

of Separation” Metaphor,

16 CONST. COMMENT. 627 (1999) ........cccccccceeeeeeee 15

THE FEDERALIST NO. 39 (James Madison) ....................... 20

1X

TABLE OF AUTHORITIES (Cont.)

Page(s)

THE FEDERALIST No. 45 (James Madison) ....................... 12

Noah Feldman, The /ntellectual Origins of the

Establishment Clause,

ae eR ee 12

THE FOUNDERS’ CONSTITUTION (Philip B. Kurland

& Ralph Lerner eds., 1987)...........cccceeeee 13, 15, 18

Mary Ann Glendon & Raul F. Yanes, Structural Free

Exercise, 90 MICH. L. REV. 477 (1991).................. 9

PHILIP HAMBURGER, SEPARATION OF CHURCH

ne 7)

Hearing Before the Senate Comm. on the Judiciary,

108" Cong, (2004) ........cccseccesecsssesessesessesessesecseseeees 8

Hearing Before the Subcomm. on the Constitution of the

House Comm. on the Judiciary, 104" Cong. 49

PUNE ccncstondamnnseneddncnonsqineciieniabisesiaaniadenaeadaiianadinintia 8

Stanley Ingber, Religion or Ideology: A Needed

Clarification of the Religion Clauses,

| ETE 16

SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH

ET Wil iicancteicitiinintienettinnpniatnsiniliaiadsintiesenians 10

Douglas Laycock, “Nonpreferential” Aid to Religion: A

False Claim About Original Intent,

27 wM. & MARY L. REV. 875 (1986)...............00 19

LEONARD W. LEvy, THE ESTABLISHMENT CLAUSE:

RELIGION AND THE FIRST AMENDMENT (1994)..... 12

x

TABLE OF AUTHORITIES (Cont.)

Page(s)

Michael W. McConnell, Establishment and Disestablishment

at the Founding, Part I: Establishment of Religion,

44 Wo. & MARY L. REV. 2105 (2003)................. 16

Michael A. Paulsen, Religion, Equality, and the

Constitution: An Equal Protection Approach to

Establishment Clause Adjudication,

61 NOTRE DAME L. REV. 311 (1986).................... 16

Richard C. Schrager, The Role of the Local in the Doctrine

and Discourse of Religious Liberty,

117 HARV. L. REV. 1810 (2004) ..0000. 0... eee eee 16

Second Inaugural Address (March 4, 1805),

3 THE WRITINGS OF THOMAS JEFFERSON 378

(Andrew A. Lipscomb & Albert Ellery Bergh

ihc SPI eiaiediceehacinnitiecediessdchsesielictesntatnieeneninaainiaisitis ay

Douglas G. Smith, The Establishment Clause:

Corollary of Eighteenth Century Corporate Law?,

SS POW. UU. 1. RBV. ZIP GREG) nccccccccccccoscceseccsenseese 16

STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST

FOR A CONSTITUTIONAL PRINCIPLE OF

RELIGIOUS FREEDOM (1995) ..................cceeeeeee 15, 21

JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF

THE UNITED STATES (1833)..............0. 15, 18, 20, 21

MARK TUSHNET, RED, WHITE, AND BLUE: A CRITICAL

ANALYSIS OF CONSTITUTIONAL LAW (1988)......... ll

William W. Van Alstyne, What Is “An Establishment

of Religion” ?, 65 N.C. L. REV. 909 (1987)........... 16

No. 03-1500

IN THE

Supreme Court of the United 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

BRIEF OF AMICUS CURIAE EAGLE FORUM EDUCATION &

LEGAL DEFENSE FUND IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE!

Eagle Forum Education and Legal Defense Fund (“Eagle

Forum ELDF”) is an Illinois nonprofit corporation organized

' This brief is filed with the written consent of all parties. Pursuant to

Supreme Court Rule 37.6, amicus states that no counsel for any party

authored this brief in whole or in part, nor did any person or entity, other

than amicus, its members, or its counsel make a monetary contribution to

the preparation or submission of this brief.

2

in 1981. For over twenty years it has defended principles of

limited government, individual liberty, and moral virtue. To

ensure the guarantees of individual liberty enshrined in our

written Constitution, Eagle Forum ELDF advocates that the

Constitution be interpreted according to its original meaning.

Eagle Forum ELDF has supported longstanding principles of

morality in American society, and has consistently defended

the right of religious expression. Eagle Forum ELDF has a

strong interest in protecting the right to publicly display the

Ten Commandments.

SUMMARY OF ARGUMENT

The lower court properly applied the Lemon test, and its

ruling should be affirmed. The court recognized that the test

under Lemon is an objective one, focusing on whether a

“reasonable observer” would understand the display to

constitute an “endorsement” of a particular religion.

Because the Ten Commandments have a well-established

secular as well as religious meaning, the court correctly held

that an objective observer would not perceive their display as

an “endorsement” of religion.

The Fifth Circuit’s analysis therefore stands in stark

contrast to that in McCreary, where the court barred a similar

Ten Commandments display after applying a_ highly

subjective analysis of the intentions of the government actors

responsible for the display. The disparate rulings by the

courts in Van Orden and McCreary provide a powerful

illustration of the problems inherent in the Lemon test.

The Lemon test has caused confusion among the lower

courts and often restricts religious liberty in a manner that is

inconsistent with the original meaning of the First

Amendment. The Establishment Clause was originally

viewed as a federalism provision that protected state

establishments from interference by the federal government.

The Framers wisely recognized that the individual states

should remain free to adopt diverse practices with respect to

3

religion without the threat of an established church at the

national level.

The Lemon test is inconsistent with this original

understanding. It interjects the federal government into state

decisionmaking in a manner that restricts religious liberty.

Accordingly, Amicus respectfully requests that the Court

abandon the Lemon test in favor of an analysis that is more

consistent with the original meaning of the First

Amendment—one that makes clear that the display of the

Ten Commandments does not constitute an “establishment”

of religion.

BACKGROUND

Petitioner asks the federal courts to order the removal of

a display of the Ten Commandments that all parties agree

has been an element of a legally-protected National Historic

Landmark for over forty years. See Van Orden v. Perry, 351

F.3d 173, 175 n.1 (5" Cir. 2003). The display is one of a

“wide array” of monuments, plaques and seals on the

grounds of the Texas State Capitol “depicting both the

secular and religious history of Texas.” Jd. at 175-76. The

Ten Commandments monument was a gift of a private

organization, the Fraternal Order of Eagles, and contains an

inscription to that effect. /d. at 176.

Petitioner maintains that the display violates the

Establishment Clause under the test set forth in Lemon v.

Kurtzman. While Petitioner concedes that the monument

does not involve an “excessive entanglement” of government

and religion, he maintains that it lacks a secular purpose and

that its primary effect is to advance religion. /d. at 177.

Both the district court and the Fifth Circuit rejected this

contention, concluding that a reasonable observer would not

perceive the display as an endorsement of religion. See id. at

182.

4

ARGUMENT

I. The Lemon test is inconsistent with the original

meaning of the Establishment Clause and has

resulted in confusion.

The Fifth Circuit correctly applied the Lemon test. Its

ruling should be affirmed. In many instances, however, the

Lemon test has caused confusion among the lower courts,

resulting in the prohibition of religious expression that the

Framers never thought constituted an “establishment” of

religion.? This case presents an opportunity for the Court to

clarify its Establishment Clause jurisprudence and bring it

more closely in line with the original meaning of the First

Amendment.

> See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301,

2327 (2004) (Thomas, J., concurring in judgment) (noting the

“difficulties with our Establishment Clause cases”); Sante Fe Indep. Sch.

Dist. v. Doe, 530 U.S. 290, 319 (2000) (Rehnquist, C.J., dissenting)

(“Lemon has had a checkered career in the decisional law of this

Court.”); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S.

819, 861 (1995) (Thomas, J., concurring) (“[OJur Establishment Clause

jurisprudence is in hopeless disarray.”); Lamb's Chapel v. Center

Moriches Union Free Sch. Dist., 508 U.S. 384, 399 (1993) (Scalia, J.,

concurring in judgment) (noting “the long list of constitutional scholars

who have criticized Lemon”), Lee v. Weisman, 505 U.S. 577, 644 (1992)

(Scalia, J., dissenting) (Lemon “has received well-earned criticism from

many Members of this Court”); County of Allegheny v. ACLU, 492 U.S.

573, 655 (1989) (Kennedy, J., concurring in judgment in part and

dissenting in part) (refusing to “adopt{] [the Lemon] test as our primary

guide in [holiday display cases]”); Corp. of the Presiding Bishop of the

Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 346

(1987) (O’Connor, J., concurring in judgment) (noting the “difficulties

inherent in the Court’s use of the test articulated in Lemon”); Wallace v.

Jaffree, 472 U.S. 38, 68 (1985) (O’Connor, J., concurring in the

judgment) (“Despite its initial promise, the Lemon test has proved

problematic.”); Comm. for Pub. Ed. & 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’”’).

5

A. The Lemon test has caused confusion among the

lower courts.

Under the three-part test articulated by the Court in

Lemon, governmental action is constitutional only if it has a

“secular” purpose, its “principal or primary effect” is one

that “neither advances nor inhibits religion,” and it does not

“foster ‘an excessive government entanglement with

religion.”” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)

(quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)).

In certain contexts, the entanglement prong may be

considered as an aspect of the effects inquiry. Agostini v.

Felton, 521 U.S. 203, 232-33 (1997). Governmental actions

that run afoul of any of these three prongs may be barred as

unconstitutional under this test. The test has proven

particularly problematic given that each element is highly

malleable and is subject to a multitude of inconsistent and

confusing constructions.

In determining whether government action has a “secular

purpose,” for example, courts have relied on the subjective

intentions of the authors of government action to a greater or

lesser extent. Insofar as these subjective intentions guide the

constitutional analysis, the potential for disparate outcomes

increases as different judicial entities are called upon to

review similar government actions. See Wallace v. Jaffree,

472 U.S. 38, 108 (1985) (Rehnquist, J., dissenting)

(observing that the secular purpose prong “has proven

mercurial in application”).

Similarly, courts take different approaches in

determining whether government action “advances” or

“inhibits” religion. Often courts do not take sufficient

account of the inhibitory nature of governmental conduct on

religion or are overly deferential to government actors when

the question is whether they are inhibiting religious

practices. As a result, courts have upheld governmental

actions that are openly hostile to religion or religious belief.

See, e.g., American Family Ass'n, Inc. v. City and County of

6

San Francisco, 277 F.3d 1114, 1119, 1122 (9" Cir. 2002)

(upholding resolution denouncing the “Religious Right” and

various religious organizations for their position on the

morality of homosexuality after concluding that there was

“little guidance concerning what constitutes a primary effect

of inhibiting religion”).

Finally, there are disparate approaches to what

constitutes “excessive” entanglement = given that

“{e]ntanglement is a question of kind and degree.” See

Lynch v. Donnelly, 465 U.S. 668, 684 (1984). Some courts

take a deferential view, while others take a more rigid

approach. Lacking sufficient guidance, the lower courts are

left to “puzzle through this analysis” on their own. See Doe

v. Beaumont Indep. Sch. Dist., 240 F.3d 462, 497 (5™ Cir.

2001) (en banc) (Wiener, J., concurring in part and

dissenting in part) (“[T]o date the Supreme Court has offered

scant guidance as to what quality and quantity of

entanglement is excessive.”).

The fact that this Court has refused to apply a “single test

or criterion” in analyzing purported Establishment Clause

violations has only added to the confusion. See Lynch, 465

U.S. at 679. Not only are courts unsure how to apply the

factors identified in Lemon, but they are unsure whether and

to what extent those factors apply in individual cases.

Moreover, even in cases where the Lemon factors apply, the

test “has caused this Court to fracture into unworkable

plurality opinions, . . . depending upon how each of the three

factors applies to a certain state action.” Wallace, 472 U.S.

at 110 (Rehnquist, J., dissenting). The result has been a

string of decisions that are difficult to reconcile.

In sum, the Lemon test does not provide the well-defined

rules that are required to give the lower courts and

government actors clear guidance as to what is

constitutionally permissible state action. As such, it only

encourages wasteful and expensive litigation.

7

B. The lower courts invoking Lemon have prohibited

religious expression that the Framers never

thought constituted an “establishment” of

religion.

More significantly, as a result of confusion among the

lower courts applying Lemon, there have been instances in

which state action that was never thought to constitute an

“establishment” of religion has been prohibited. Thus, for

example, courts have barred a reference to God in the pledge

of allegiance, Newdow v. United States Congress, 328 F.3d

466 (9° Cir. 2003), rev’d, 124 S. Ct. 2301 (2004), prayers

opening town council meetings that mention Jesus Christ,

Wynne v. Town of Great Falls, South Carolina, 376 F.3d 292

(4 Cir. 2004), and the display of a cross on public land as

part of a privately-erected war memorial, Buono v. Norton,

371 F.3d 543 (9" Cir. 2004).

As a result, the Lemon test often has interfered with

religious expression. This Court has emphasized that “the

common purpose of the Religion Clauses ‘is to secure

religious liberty.” Sante Fe Indep. Sch. Dist. v. Doe, 530

U.S. 290, 313 (2000) (quoting Engel v. Vitale, 370 U.S. 421,

430 (1962)). It has recognized that religious speech is

protected to an equal extent whether on government or

private property. Capitol Square Review & Advisory Bad. v.

Pinette, 515 U.S. 753, 760 (1995). Nonetheless, the test the

Court outlined in Lemon has often resulted in an overt

hostility to religious expression, thereby bringing the courts

“into ‘war with our national tradition as embodied in the

First Amendment’s guaranty of the free exercise of

religion.’” Lynch, 564 U.S. at 673 (quoting McCollum v. Bd.

of Educ., 333 U.S. 203, 211-12 (1948)). See also Edwards v.

Aguillard, 482 U.S. 578, 617 (1987) (Scalia, J., dissenting)

(“We have not yet come close to reconciling Lemon and our

Free Exercise cases, and typically we do not really try.”).

8

Moreover, the chilling effect of potential litigation on

public religious expression has been significant. Because

the Lemon test does not provide clear guidance, state actors

are often inclined to prohibit religious expression rather than

face the possibility of costly and protracted litigation. Thus,

not only is the Lemon test overly restrictive of religious

expression on its face, but in its application it often has

practical effects that the Court never intended.

C. The Lemon test is based on a flawed historical

metaphor.

At bottom, the problems with the Lemon test are directly

traceable to its lack of historical support. The test is

premised on the notion that the First Amendment creates a

“wall of separation” between church and state. See Everson

v. Bd. of Educ., 330 U.S. 1, 16 (1947). These terms,

however, are nowhere found in the constitutional text.

Moreover, this concept of church-state relations is at odds

with the historical record. “There is simply no historical

foundation for the proposition that the Framers intended to

build the ‘wall of separation’ that was constitutionalized in

3 See, e.g., Hearing Before the Senate Comm. on the Judiciary, 108"

Cong. (2004) (testimony of Professor Vincent Phillip Munoz) af

hitp://judiciary.senate.gov/testimony.cfm?id=1218&wit id=3523 (“The

law’s vagueness makes state acknowledgement of religious sentiment

suspect. It enables special interest litigators, who are professionally

hostile toward religion, to file lawsuits to challenge almost any state

action that accommodates religion. The chilling effect of such litigation

and the mere threat [of] it is considerable. ... Fearful local officials and

public school administrators have the incentive to eliminate the public

acknowledgement of religious sentiment in order to avoid costly

litigation.”); Hearing Before the Subcomm. on the Constitution of the

House Comm. on the Judiciary, 104" Cong. 49, 51-52 (1996) (testimony

of William A. Donohue, Catholic League for Religious and Civil Rights)

(maintaining that the potential for lawsuits has “create[d] a chilling effect

on the free speech rights of the Catholic clergy” and that confusion about

the status of the law has created “religious-free zones”).

—

9

Everson.” Wallace, 472 U.S. at 106 (Rehnquist, J.,

dissenting).4 Rather, they contemplated that there would be

a healthy interaction between religion and government.°

Indeed, this Court has acknowledged that “(t]he

metaphor of a ‘wall’ or impassible barrier between Church

and State, taken too literally, may mislead constitutional

analysis,” Gillette v. United States, 401 U.S. 437, 450

(1971), and that “the metaphor itself is not a wholly accurate

description of the practical aspects of the relationship that in

fact exists between church and state,” Lynch, 465 U.S. at

673. Even in Lemon, the Court observed that “total

separation is not possible in an absolute sense. Some

relationship between government and religious organizations

is inevitable.” 403 U.S. at 614. The experience under

Lemon—a history that is marked by controversy and

confusion—has demonstrated that the test is inherently

flawed.

4 See also PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE 481

(2002) (“As should be clear from the contrast between separation and the

religious liberty guaranteed b, the First Amendment, the constitutional

authority for separation is without historical foundation.”); Mary Ann

Glendon & Raul F. Yanes, Structural Free Exercise, 90 MICH. L. REV.

477, 485 (1991) (“With little or no support from text, history, or

tradition, the members of the Everson Court braided into the Religion

Clause the notions that the establishment provision was meant to create a

‘wall of separation’ between religion and the government, that it was to

be broadly construed to prohibit all government aid to religion, and that

government was required to be strictly neutral as between religion and

nonreligion.”).

5 See, e.g., MASS. CONST. OF 1780, art. II] (observing that “the happiness

of a people, and the good order and preservation of civil government,

essentially depend upon piety, religion, and morality” and that “these

cannot be generally diffused through a Community, but by the institution

of the publick worship of GOD, and of publick instructions in piety,

religion, and morality”).

10

Il. The Establishment Clause’ was _ originally

understood as a federalism provision.

The difficulties associated with the Lemon test may

largely be avoided by returning to an interpretation of the

Establishment Clause that is more consistent with its original

meaning. “The text and history of the Establishment Clause

strongly suggest that it is a federalism provision intended to

prevent Congress from interfering with state establishments.”

Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301,

2330 (2004) (Thomas, J., concurring in judgment).6 As

such, the clause merely reiterates the fundamental division of

power embodied in the original Constitution. The federal

government wa’ not delegated the authority to establish a

national church. Nor was it given the authority to interfere

with the state establishments.

A. The Establishment Clause prohibits federal

interference with state establishment of religion.

The Establishment Clause provides that Congress shall

pass no law “respecting an establishment of religion.” U.S.

CONST. amend. I. The term “respecting” was understood as

being synonymous with the term “relating.” See, e.g.,

SAMUEL JOHNSON, A_ DICTIONARY OF THE ENGLISH

LANGUAGE (1773). To “establish” meant “[t]o settle in any

® See also Wallace, 472 U.S. at 106 (Rehnquist, J., dissenting)

(Establishment Clause “forbade establishment of a national religion, and

forbade preference among religious sects or denominations”); Lee, 505

U.S. at 644 (Scalia, J., dissenting) (“Our Religion Clause jurisprudence

has become bedeviled (so to speak) by reliance on formulaic abstractions

that are not derived from, but positively conflict with, our long-accepted

constitutional traditions.”); School Dist. of Abington Township v.

Schempp, 374 U.S. 203, 309-10 (1963) (Stewart, J., dissenting)

(Establishment Clause “was primarily an attempt to insure that Congress

not only would be powerless to establish a national church, but would

also be unable to interfere with existing state establishments’’).

11

privilege or possession; to confirm.” /d. A “privilege”, in

turn, was understood as a “[pjeculiar advantage,” an

“{iJmmunity”, or a “publick right.” Jd.

Thus, the text suggests that the Establishment Clause was

designed to prohibit Congress from passing any law that

would uniquely privilege a single religion by establishing it

at the national level. See Newdow, 124 S. Ct. at 2330

(Thomas, J., concurring in judgment). Such uniformity

would interfere with the religious liberty found in the several

states, which took diverse approaches to religious worship

and establishment of particular churches. The text, however,

“does not purport to protect individual rights.” /d. Rather, it

is a structural provision that prohibits the federal government

from undertaking certain prohibited actions. As such, it is

not subject to incorporation against the states pursuant to

Section One of the Fourteenth Amendment. _ Indeed,

incorporation of the Establishment Clause would “lead[] to a

peculiar outcome”—.e., “[i]t would prohibit precisely what

the Establishment Clause was intended to protect—state

establishments of religion.” /d. at 2331 (emphasis added).’

The history of the clause further confirms this

construction. When the amendment was proposed and

7 See also Schempp, 374 U.S.- at 310 (Stewart, J., dissenting)

(incorporation of the clause would lead to the “irony that a constitutional

provision evidently designed to leave the States free to go their own way

should now have become a restriction upon their autonomy”); AMAR,

supra, at 41 (“As a more pure federalism provision, then, the

establishment clause seems considerably more difficult to incorporate

against states.”); GERARD V. BRADLEY, CHURCH-STATE RELATIONSHIPS

IN AMERICA 95 (1987) (incorporation of the Establishment Clause is

“logically impossible; it would be like trying to a, ly the Tenth

Amendment to the states”); M..RK TUSHNET, RED, WHITE, AND BLUE: A

CRITICAL ANALYSIS OF CONSTITUTIONAL LAW 253 n.19 (1988) (“[T]o

the extent that the framers of the first amendment sought to protect state

establishments against national action, it is not entirely coherent to say

that the amendment is now applicable to the states.”’).

12

ratified, several of the states maintained established

churches. /d.; AKHIL AMAR, THE BILL OF RIGHTS: CREATION

AND RECONSTRUCTION 32-33 (1998). Nonetheless, the

approaches to public measures regarding religion varied

widely from state to state. See LrFowarRD W. Levy, THE

ESTABLISHMENT CLAUSE: RELIGION AND THE FIRST

AMENDMENT I1 (1994).8 While some states had exclusive

establishments, authorizing only a single established church,

a few states provided for multiple established religions. See,

e.g., S.C. CONST. OF 1778, art. XXXVIII (providing a

mechanism by which religious societies could become

“established” and “enjoy equal Privileges”); VT. CONST. OF

1777, art. XLI (“all religious societies” shall be “encouraged

and protected”). Other states, in contrast, prohibited the

establishment of any church in preference to another. See,

e.g., N.J. CONST. OF 1776, art. XIX (“[T]here shall be no

Establishment of any one Religious Church or denomination

in this State in Preference to any other.”).

From the outset, the Founders recognized that the federal

government lacked authority to interfere with these state

establishments, and in particular lacked the authority to

establish a national church. The federal government was to

_ be a government of limited and enumerated powers. The

Framers emphasized that “(t]he powers delegated by the

proposed Constitution to the Federal Government are few

and defined.” THE FEDERALIST No. 45, at 292 (Clinton

Rossiter ed. 1961) (James Madison’.

This general principle extended to matters of religion.

James Madison observed in the Virginia ratification debates

that “[t}here is not a shadow of right in the general

® See also Noah Feldman, The Intellectual Origins of the Establishment

Clause, 77 N.Y.U. L. REV. 346, 381 (2002) (“Modes of establishments in

the colonies differed very widely, and the word ‘establishment’ was not

used consistently.”).

13

government to intermeddle with religion. Its least

interference with it, would be a most flagrant usurpation.” 5

THE FOUNDERS’ CONSTITUTION 88 (Philip B. Kurland &

Ralph Lerner eds., 1987). James Iredell similarly stated in

defending the proposed Constitution that “[i]f any future

Congress should pass an act concerning the religion of the

country, it would be an act which they are not authorized to

pass, by the Constitution, and which the people would not

obey. Everyone would ask, ‘Who authorized the

government to pass such an act?’” 4 THE DEBATES IN THE

SEVERAL STATE CONVENTIONS 194 (Jonathan Elliot ed., 2d

ed. 1881). Thus, even before the Establishment Clause was

embodied in the text of the Constitution, there was a general

recognition that the federal government lacked the power to

interfere with the states’ regulation of religion.

Despite these structural guarantees, there remained some

concern that the federal government might usurp authority to

act with respect to the establishment of religion. As James

Madison observed in describing the proposed amendment,

certain of the state conventions “seemed to entertain an

opinion” that the Necessary and Proper Clause might enable

Congress to “make laws of such a nature as might infringe

the rights of conscience, and establish a national religion.” 1

ANNALS OF CONG. 758 (Joseph Gales ed., 1789). In order to

reinforce this jurisdictional division between the states and

the federal government and better secure religious liberty,

when crafting the Bill of Rights the Framers sought to make

this division of power express.

Congress went through several drafts in creating what

ultimately became the Establishment Clause. James

Madison initially proposed the following language: “The

civil rights of none shall be abridged on account of religious

belief or worship, nor shall any national religion be

established, nor shall the full and equal rights of conscience

be in any manner, or on any pretext, infringed.” /d. at 451.

The House Committee of the Whole subsequently debated

language that provided that “no religion shall be established

14

by law, nor shall the equal rights of conscience be

infringed.” /d. at 757. Madison indicated that this provision

meant that “Congress should not establish a religion, and

enforce the legal observation of it by law, nor compel men to

worship God in any manner contrary to their conscience.”

Id. at 758. According to Madison, “the people feared one

sect might obtain a pre-eminence, or two combine together,

and establish a religion to which they would compel others

to conform.” /d. At the same time, however, some “thought

the amendment altogether unnecessary, inasmuch as

Congress had no authority whatever delegated to them by the

constitution to make religious establishments.” Jd. at 757

(remarks of Roger Sherman).

Thus, the debates demonstrate that Congress believed

that the federal government lacked authority to establish a

national church or interfere with the state establishments.

See Newdow, 124 S. Ct. at 2330 (Thomas, J., concurring in

judgment). Nonetheless, in order to dispel any concerns,

Congress sought to make this division of power express.

In doing so, the Framers made clear that the federal

government would take no action that would restrict

religious practices in any way. Accordingly, the

Establishment Clause was coupled with a further

admonition—that Congress was prohibited from passing any

law that would impermissibly burden the “free exercise” of

religion. U.S. CONST. amend. I. The First Amendment

therefore guaranteed religious liberty more broadly—beyond

merely prohibiting the establishment of a national church

that might interfere with established churches in the several

states.

Early commentary on the Constitution confirmed this

understanding of the amendment. Justice Story in his

Commentaries on the Constitution stated that under the

Establishment Clause “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

15

state constitutions.” 3 JOSEPH STORY, COMMENTARIES ON

THE CONSTITUTION OF THE UNITED STATES § 1873 (1833).

The clause, according to Story, was merely designed to

“prevent any national ecclesiastical establishment.” /d.

§ 1871. Similarly, William Rawle, in his treatise on the

Constitution, concluded that “[t]he first amendment prohibits

congress from passing any law respecting an establishment

of religion, or preventing the free exercise of it. It would be

difficult to conceive on what possible construction of the

Constitution such a power could ever be claimed by

congress.” WILLIAM RAWLE, A VIEW OF THE CONSTITUTION

OF THE UNITED STATES (2d ed. 1829), reprinted in 5 THE

FOUNDERS’ CONSTITUTION 106 (Philip B. Kurland & Ralph

Lerner eds., 1987).

Recent historical scholarship has further confirmed the

jurisdictional nature of tie amendment. Thus, the clauses

have been described as an “exercise in federalism,” as

making “explicit jurisdictional policies that were already

implicit in the constitutional order,” and as preventing

federal “‘interferfence] with any _ state’s_ religious

establishment laws.”? Such analyses have shown that even

9 See, e.g., AMAR, supra, at 32 (Establishment Clause “prohibited the

national legislature from interfering with, or trying to dis-establish,

churches established by state and local governments”); BRADLEY, supra,

at 95 (Establishment Clause intended to make clear “that the national

government may neither effect an establishment nor interfere with states

that do”); STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A

CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM 17-18 (1995) (“The

religion clauses, as understood by those who drafted, proposed, and

ratified them, were an exercise in federalism.”); David O. Conkle,

Toward a General Theory of the Establishment Clause, 82 Nw. U. L.

REV. 1113, 1142 (1988) (noting the “federalistic motivation for the

establishment clause”); Donald L. Dreisbach & John D. Whaley, What

the Wall Separates: A Debate on Thomas Jefferson's “Wall of

Separation” Metaphor, 16 CONST. COMMENT. 627, 650 (1999)

(Establishment Clause “merely made explicit the jurisdictional policies

that were already implicit in the constitutional order’); Stanley Ingber,

Religion or Ideology: A Needed Clarification of the Religion Clauses, 41

16

Thomas Jefferson, whose references to “separation” of

church and state form the basis for the Court’s Establishment

Clause jurisprudence, see Everson, 330 U.S. at 16, viewed

the clause as a purely jurisdictional provision. See AMAR,

supra, at 34 (observing that Jefferson “appears to have

understood the states’-rights aspects of the original

establishment clause”); DONALD L. DREISBACH, THOMAS

JEFFERSON AND THE WALL OF SEPARATION BETWEEN -

CHURCH AND STATE 59-60 (2002) (“A careful review of

Jefferson’s actions throughout his public career suggests that

he believed, as a matter of federalism, that the national

STAN. L. REV. 233, 307 (1989) (Establishment Clause was designed “to

protect state religious establishments from national displacement’);

Michael W. McConnell, Establishment and Disestablishment at the

Founding, Part 1: Establishment of Religion, 44 WM. & MARY L. REV.

2105, 2109 (2003) (Establishment Clause “prevented the newly formed

federal government from establishing religion or from interfering in the

religious establishments of the states”); Michael A. Paulsen, Religion,

Equality, and the Constitution: An Equal Protection Approach to

Establishment Clause Adjudication, 61 NOTRE DAME L. REV. 311, 317

(1986) (“The original intention behind the establishment clause . . .

seems fairly clearly to have been to forbid establishment of a national

religion and to prevent federal interference with a state’s choice of

whether or not to have an official state religion.”); Richard C. Schrager,

The Role of the Local in the Doctrine and Discourse of Religious Liberty,

117 HARV. L. REV. 1810, 1823 (2004) (“[T]he Religion Clauses emerged

from the Founding Congress as local-protecting; the clauses were

specifically meant to prevent the national Congress from legislating

religious affairs while leaving local regulations of religion not only

untouched by, but also protected from, national encroachment.”);

Douglas G. Smith, The Establishment Clause: Corollary of Eighteenth

Century Corporate Law?, 98 Nw. U. L. REV. 239, 240 (2003)

(Establishment Clause “acts as a sort of ‘federalism-based’ guarantee that

merely delineates the proper roles of the federal and state governments

with respect to religious establishments”); William W. Van Alstyne,

What Is “An Establishment of Religion”’?, 65 N.C. L. REV. 909, 910-11

(1987) (under the Establishment Clause, “Congress would have no power

to interfere with any state’s religious establishment laws, whatever they

might be”).

17

government had no jurisdiction in religious matters, whereas

state governments were authorized to accommodate and even

prescribe religious exercises.”).'°

In his Second Inaugural Address, for example, Jefferson

made clear that, while the federal government lacked

authority to pass measures pertaining to “religious

exercises,” the states remained free to do so:

In matters of religion, I have considered that its free

exercise is placed by the constitution independent of

the powers of the general [i.e., federal] government.

I have therefore undertaken, on no occasion, to

prescribe the religious exercises suited to it; but

have left them, as the constitution found them,

under the direction and discipline of State or Church

authorities acknowledged by the several religious

societies.

Second Inaugural Address (March 4, 1805), 3 THE WRITINGS

OF THOMAS JEFFERSON 378 (Andrew A. Lipscomb & Albert

Ellery Bergh eds., 1905). Similarly, in a letter to Samuel

Miller, Jefferson maintained that “no power to prescribe any

religious exercise, or to assume authority in religious

discipline, has been delegated to the general government. It

must then rest with the states, as far as it can be in any

human authority.” Letter from Thomas Jefferson to Rev.

10 The relevance of Jefferson’s views is also questionable given that he

was not involved with drafting the First Amendment: “Thomas Jefferson

was of course in France at the time the constitutional Amendments

known as the Bill of Rights were passed by Congress and ratified by the

States. His letter to the Danbury Baptist Association was a short note of

courtesy, written 14 years after the Amendments were passed by

Congress. He would seem to any detached observer as a less than ideal

source of contemporary history as to the meaning of the Religion Clauses

of the First Amendment.” Wallace, 472 U.S. at 92 (Rehnquist, J.,

dissenting). See also DREISBACH, supra, at 98-99 (Jefferson’s “influence

on the actual text of the First Amendment was at most indirect”).

18

Samuel Miller (Jan. 23, 1808), in 5 THE FOUNDERS’

CONSTITUTION 98 (Philip B. Kurland & Ralph Lerner eds.,

1987).

This is not to say that Congress has no authority in

matters of religion. The First Amendment merely prohibits

legislation respecting an “establishment” of religion. See

U.S. CONST. amend. I. In fact, the Framers specifically

rejected more sweeping language that would have prohibited

Congress from passing any law “touching religion.” See |

ANNALS OF CONG. 759 (Joseph Gales ed., 1789).

In exercising its enumerated powers, Congress remained

free to enact measures that had the incidental effect of aiding

or promoting religion. Thus, for example, the same

Congress that drafted the First Amendment took a variety of

measures that aided or promoted religion, including enacting

legislation providing for paid chaplains and proclaiming a

day of thanksgiving and prayer. Lynch, 465 U.S. at 674, 675

n.2; Wallace, 472 U.S. at 100-01 (Rehnquist, J., dissenting)

(citing 1 ANNALS OF CONG. 914 (1789)). Indeed, Justice

Story concluded that “the general, if not the universal

sentiment in America was, that Christianity ought to receive

encouragement from the state, so far as was not incompatible

with the private rights of conscience, and the freedom of

religious worship.” 3 JOSEPH STORY, COMMENTARIES ON

THE CONSTITUTION OF THE UNITED STATES § 1868 (1833).!!

'! See also CHESTER JAMES ANTIEAU ET AL., FREEDOM FROM FEDERAL

ESTABLISHMENT: FORMATION AND EARLY HISTORY OF THE FIRST

AMENDMENT RELIGION CLAUSES 160 (1964) (“A policy of withdrawing

the power of the Federal Government to aid religion was not

contemplated and would have found emphatic disapproval.”); DAVID P.

CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD

1789-1801, at 113 (1997) (“There was nothing either in the text of the

provision . . . or in Madison's explanation of its meaning to suggest

either that it forbade Congress to provide impartial support to religion in

general or that it entitled those with religious scruples to exemptions

from generally applicable laws.”); Douglas Laycock, “Nonpreferential’

19

Nor does this mean that there are no constraints on state

activity with respect to religion. Such activities would still

be subject to the prohibitions found in the Free Exercise

Clause as incorporated under the Fourteenth Amendment.

See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).'? To

the extent a state engaged in activity that had the effect of

impairing citizens’ right to exercise their religious

preferences, such actions would be constitutionally

prohibited. See Newdow, 124 S. Ct. at 2332 (Thomas, J.,

concurring in judgment) (observing that “coercive state

establishments” might be constitutionally prohibited);

Schempp, 374 U.S. at 312 (Stewart, J., dissenting) (“That the

central value embodied in the First Amendment—and, more

particularly, in the guarantee of ‘liberty’ contained in the

Fourteenth—is the safeguarding of an individual’s right to

free exercise of his religion has been consistently

recognized.”).

B. Recognition of the jurisdictional nature of the

Establishment Clause would be consistent with

this Court’s jurisprudence enforcing other aspects

of the federal structure.

Recognition of the jurisdictional nature of the

Establishment Clause would be consistent with the Court’s

jurisprudence in other areas in which it has given renewed

emphasis to the structural guarantees embodied in the

Constitution. See, e.g., United States v. Morrison, 529 U.S.

Aid to Religion: A False Claim About Original Intent, 27 WM. & MARY

L. REV. 875, 909 (1986) (“[T]he establishment clause was debated on the

assumption that the government may have some power to aid religion.”).

12 The Free Exercise Clause is properly subject to incorporation, unlike

the Establishment Clause, because it acts not as a structural guarantee,

but rather protects individual liberties. See AMAR, supra, at 254-56.

20

598 (2000); United States v. Lopez, 514 U.S. 549 (1995);

New York v. United States, 505 U.S. 144 (1992).

It is “incontestible that the Constitution established a

system of ‘dual sovereignty.”” Printz v. United States, 521

U.S. 898, 918 (1997) (quoting Gregory v. Ashcroft, 501 U.S.

452, 457 (1991)). While the states “surrendered many of

their powers to the new Federal Government, they retained

‘a residuary and inviolable sovereignty.’*” Jd. at 918-19

(quoting THE FEDERALIST No. 34. at 245 (James Madison)).

This fundamental aspect of ou: constitutional system is

“reflected throughout the Constitution’s text.” /d. at 919. In

particular, residual state sovereignty is “implicit .. . in the

Constitution’s conferral upon Congress of not ll

governmental powers, but only discrete, enumerated ones.”

Id. See also M'Culloch v. Maryland, 17 U.S. (4 Wheat.)

316, 405 (1819) (“This government is acknowledged by all,

to be one of enumerated powers.”).

Because the Constitution is “‘an instrument of limited

and enumerated powers, it follows irresistibly, that what is

not conferred, is withheld, and belongs to the state

authorities."” New York, 505 U.S. at 156 (quoting 3 JOSEPH

STORY, COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES 752 (1833)). Indeed, this has been “the

Court’s consistent understanding.” /d.

This aspect of our constitutional structure represents a

“unique contribution of the Framers to political science and

political theory.” Printz, 521 U.S. at 921 n.11 (quoting

Lopez, 514 U.S. at 575). The “separation of the two spheres

is one of the Constitution’s structural protections of liberty.”

Id. at 921. “Just as the separation and independence of the

coordinate branches of the Federal Government serves to

prevent the accumulation of excessive power in any one

branch, a healthy balance of power between the States and

the Federal Government will reduce the risk of tyranny and

abuse from either front.” New York, 505 U.S. at 181-82

(quoting Ashcroft, 501 U.S. at 458).

21

In implementing this division of authority, “(t]he

Constitution requires a distinction between what is truly

national and what is truly local.” Morrison, 529 U.S. at 617-

18. Areas of fundamentally local concern such as marriage,

Trammel v. United States, 445 U.S. 40, 50 (1980), domestic

relations, id., and criminal law, Lopez, 514 U.S. at 561 n.3,

were reserved to the states.

Religion—and in pa.ticular decisionmaking by local

governmental bodies concerning the public display of

symbols that have religious meaning—is just such a uniquely

local matter. Indeed, “it is common knowledge that the

Constitution’s framers thought that religion was a matter for

the states, not for the national government... .” SMITH,

supra, at 119. See also AMAR, supra, at 34 (observing that

the Establishment Clause “calls for the issue [of

establishment] to be decided locally”). | Under our

Constitution, “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.” Ex parte Garland, 71 U.S. 333, 397-98

(1867) (quoting STORY, supra, § 1878).

The same considerations that drove the Framers to

reserve the power over matters of religion to the states apply

today. There are dramatic cultural and religious differences

both among and within the states. The Constitution’s

reservation of local control over matters touching upon

religion wisely allows for a diversity of practices instead of

imposing a judicially-enforced, uniform rule.

These structural principles, if not dispositive, should at a

minimum inform the Court’s Establishment Clause

jurisprudence. Due regard should be given to the states’

traditional role in matters of religion, particularly where, as

here, the issue before the Court implicates local control over

state or municipal property. Cf New York, 505 U.S. at 161

(federal government may not “commandeer” or direct local

authorities).

22

Iil. Even under the Lemon test, the Establishment

Clause does not prohibit displays that have both

religious and historical sigaificance.

Even under the Lemon test—flawed as it is—the display

of the Ten Commandments does not violate the

Establishment Clause. This Court has emphasized that

where public displays have both religious and historical

significance, they do not constitute an “establishment” of

religion. All that is required is that a display not be

“motivated wholly by religious considerations.” Lynch, 465

U.S. at 680. That is the case here where the Ten

Commandments have played an important role in the history

of Western Civilization and the development of our legal

system.

A. Displays of the Ten Commandments have both

religious and historical significance.

The Court has consistently recognized that “religion has

been closely identified with our history and government,”

Schempp, 374 U.S. at 212, that “{tJhe history of man is

inseparable from the history of religion,” Engel, 370 U.S. at

434, and that “[iJnteraction between church and state is

inevitable,” Agostini, 521 U.S. at 233. There has been “an

unbroken history of official acknowledgment by all three

branches of government of the role of religion in American

life from at least 1789.” Lynch, 465 U.S. at 674. At bottom,

“[w]e are a religious people whose institutions presuppose a

Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313

(1952).

In particular, the Court has upheld public practices that

have both historical and religious significance. See Marsh v.

Chambers, 463 U.S. 783 (1983). In Marsh, for example, the

Court eschewed rigid application of the three-part Lemon test

and upheld the Nebraska legislature’s practice of opening

legislative sessions with a prayer on the ground that it was

“deeply embedded in the history and tradition of this

_ -

23

country.” Jd. at 786. In doing so, the Court noted the

“unambiguous and unbroken history of more than 200 years”

supporting such practices, which the Court concluded

established “the practice of opening legislative sessions with

prayer” as “part of the fabric of our society.” Jd. at 792.

So, too, the Ten Commandments are part of the “fabric

of our society” in that they have played a significant

historical role not only in the development of major religions

and systems of secular morality, but also our legal system.

Cf id. at 783 (legislative prayer was a “tolerabie

acknowledgment of beliefs widely held among the people of

this country”). As a direct result of their significant

historical role in our society, the Commandments are posted

on many public buildings, including this Court, the U.S.

Capitol, various state capitols, and numerous federal

courthouses. See Aguillard, 482 U.S. at 593-94 (observing

that the Ten Commandments have not “played an

exclusively religious mle in the history of Western

Civilization”); City of Elkhart v. Books, 121 S. Ct. 2209,

2211 (2001) (Rehnquist, C.J., dissenting) (“Undeniably, . . .

the Commandments have secular significance . . . because

they have made a substantial contribution to our secular legal

codes.”).

Even in Stone where the Court strictly applied the three-

part Lemon formula and held that a specific Ten

Commandments display in a public school violated the

Establishment Clause, it further observed that such a display

would have been appropriate if it had been “integrated into

the school curriculum . . . in an appropriate study of history,

civilization, ethics, comparative religion, or the like.” Stone

v. Graham, 449 U.S. 39, 42 (1980) (citing Schempp, 374

U.S. at 225). The Court concluded that the particular Ten

Commandments display was unconstitutional only because it

“had no secular legislative purpose.” /d. at 41. Here, the

situation is much different, given that the display was

associated with the historical role the Ten Commandments

played in the development of legal and moral principles that

24

have had a significant impact on Western Civilization. See

Van Orden v. Perry, 351 F.3d 173, 180 (5 Cir. 2003) (“The

Ten Commandments have both a religious and secular

message.”). Its placement within a National Historical

Landmark containing a variety of monuments regarding the

history of Texas and its government further underscore the

historical nature of the display. See id. at 182.

Thus, Petitioner’s contention that the display of the Ten

Commandments has “no secular purpose” is incorrect. (See

Pet. Br. at 23.) As the Court recognized in Stone, the Ten

Commandments have both religious and secular meaning.

449 US. at 42. Nor is Petitioner’s contention that the

display of the Ten Commandments must be barred because it

“impermissibly discriminat[es] among religions” correct.

(See Pet. Br. at 18.) Petitioner’s test would require that all

religious displays be prohibited, for it is impossible for a

single display to relate to ail religions. Moreover, even if

such a display could be devised, it would still fail

Petitioner's test because it would “impermissibly

discriminate” against those who do not believe in God or

religion. Quite simply, Petitioner’s test would result in a

complete prohibition of government acknowledgement of

religion—something that is not required, but rather is

prohibited—under this Court’s precedents. See Lynch, 465

U.S. at 674 (noting the “unbroken history of official

acknowledgment” of religion by the government).

Indeed, since the Court issued its decision in Stone and

its subsequent ruling in Marsh, it has repeatedly upheld

displays of symbols having religious significance to

particular denominations where such displays manifest both

a religious and secular meaning. See, e.g., Pinette, 515 U.S.

at 766 (upholding display of a cross); Lynch, 465 U.S. at 684

(upholding display of a créche); County of Allegheny v.

ACLU, 492 U.S. 573, 592 (1989) (upholding display of a

menorah). To exclude the Ten Commandments—part of the

foundation of our legal system—would be inconsistent with

25

these prior rulings. Moreover, it would cleanse from the

public square an important aspect of our nation’s history.

B. The test under Lemon is an objective one.

The lower court properly applied the Lemon test. The

test under Lemon is an objective one. Sante Fe Indep. Sch.

Dist., 530 U.S. at 308 (test based on an “objective

observer”); Lynch, 465 U.S. at 690 (O’Connor, J.,

concurring) (Court looks to “the ‘objective’ meaning of the

[government’s}] statement in the community”). The

constitutional analysis is based on the perceptions of a

reasonable observer. Lynch, 465 U.S. at 691-94 (O’Connor,

J., concurring). See also County of Allegheny, 492 U.S. at

592. A

The reasonable observer “is similar to the ‘reasonable

person’ in tort law, who ‘is not to be identified with any

ordinary individual, who might occasionally do unreasonable

things,’ but is ‘rather a personification of a community ideal

of reasonable behavior, determined by the [collective] social

judgment.’” Pinette, 515 U.S. at 779-80 (O’Connor, J.,

concurring in judgment) (quoting W. KEETON ET AL.,

PROSSER AND KEETON ON LAW OF Torts 175 (5" ed. 1984)).

Consequently, the Court does not “ask whether there is any

person who could find an endorsement of religion, whether

some people may be offended by the display, or whether

some reasonable person might think [the State] endorses

religion.”” Jd. at 780 (emphasis in original) (internal

quotations omitted).'> R: ther, the standard is based on the

'13 While courts may ascertain whether a state’s articulation of a secular

purpose is a “sham”, the “Court is normally deferential to a State’s

articulation of a secular purpose.” Aguillard, 482 U.S. at 586-87.

Moreover, this aspect of the Court’s jurisprudence should not be

construed as an invitation to engage in a wide-ranging inquiry into the

subjective beliefs of state actors. Such an invitation is inconsistent with

this Court’s precedents and would only lead to additional confusion.

26

perceptions of an objective observer. Sante Fe Indep. Sch.

Dist., 530 U.S. at 308.

The lower court properly applied these principles in

upholding the Ten Commandments display. As the court

observed, the reasonable observer test precludes judicial

decisionmaking based on the perceptions of “the

uninformed, the casual passerby, the heckler, or the reaction

of a single individual.” Van Orden, 351 F.3d at 178. Rather,

the reasonable observer standard “attempts to capture the

‘concern with the political community writ large.”” /d.

(quoting Pinette, 515 U.S. at 779-80 (O’Connor, J.,

concurring in part and concurring in judgment)). Based on

this standard, the court properly concluded that “a State’s

display of the decalogue in a manner that honors its secular

strength is not inevitably an impermissible endorsement of

its religious message in the eyes of [a] reasonable observer.

To say otherwise retreats from the objective test of an

informed person to the heckler’s veto of the unreasonable or

ill-informed—replacing the sense of proportion and fit with

uncompromising rigidity at a costly price to the values of the

First Amendment.” /d. at 182. Indeed, the court observed

that “(such hostility toward religion is not only not required;

it is proscribed.” /d. at 178.

The disparate rulings in Van Orden and McCreary may

largely be attributed to the degree with which the courts

adhered to the objective test under Lemon. In contrast to the

Fifth Circuit’s analysis in Van Orden, the McCreary court

rested its decision upon an extensive analysis of what it

believed to be the subjective purposes of government

officials. See ACLU of yee v. McCreary County,

Kentucky, 354 F.3d 438, 457 (6° Cir. 2003). Such an

approach is not supported by this Court’s precedents. In

determining whether the government intends to convey a

message of endorsement or disapproval of religion, “a court

has no license to psychoanalyze the legislators.” Wallace,

472 US. at 74 (O’Conner, J., concurring in the judgment).

27

Rather, courts must apply an objective analysis based on the

perceptions of a reasonable observer.

At bottom, the subjective test implemented by the court

in McCreary “not only misapplies the law, it also invites a

new round of First Amendment challenges to religious texts

and symbols that are nearly ubiquitous in non-schoolhouse

public buildings throughout the nation.” ACLU of Kentucky

v. McCreary County, Kentucky, 361 F.3d 928, 933 (6" Cir.

2004) (Boggs, C.J., dissenting). When the constitutional test

requires the courts to analyze the subjective, and often

hidden, intentions of government-actors it is sure to spur

unwarranted and particularly divisive litigation. See Comm.

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

662 (1980) (observing that “Establishment Clause cases . . .

stir deep feelings”). The courts and government actors

require an objective test that provides them with clear

guidance.

CONCLUSION

For the foregoing reasons, Eagle Forum ELDF

respectfully requests that the Court uphold the states’

legitimate authority to display the Ten Commandments and

affirm the decision below.

Respectfully submitted,

|

PHYLLIS SCHLAFLY DOUGLAS G. SMITH

EAGLE FORUM EDUCATION & Counsel of Record

LEGAL DEFENSE FUND KIRKLAND & ELLIS LLP

7800 Bonhomme Avenue 200 East Randolph Drive

St. Louis, MO 63105 Chicago, IL l

(314) 721-1213 (312) 861-2000

Dated: January 28, 2005