Amicus Curiae Brief — Van Orden v. Perry

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No. 03-1500

IN THE

Supreme Court of the United States

THOMAS VAN ORDEN,

Petitioner,

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 Foundation for MoralLaw, Inc.

Suggesting Affirmance

ROY S. MOORE

BENJAMIN D. DUPRE

GREGORY M. JONES

(Counsel of record)

FOUNDATION FOR MORAL LAW, INC.

Amicus Curiae

P.O. Box 231264

Montgomery, AL 36123

(334) 262-1245

Wit SON-EPES PRINTING CO , INC. — (202) 789-0096 — WASHINGTON, D C 20001

QUESTIONS PRESENTED FOR REVIEW

1. Whether the constitutionality of a monument containing

the Ten Commandments and erected on Texas state property

should be determined solely by the text of the Constitution.

2. Whether, according to the text of the Establishment

Clause, a Ten Commandments monument on Texas state

property is unconstitutional.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.......0..cccsssssccssssssssssssesssscscesssesessnssess

AT i

TABLE OF AUTHORITIES .........-cccscsscsssessccsssssccssscecssssseesssees iv

STATEMENT OF INTEREST OF AMICUS CURIAE .osessssveee: |

SUMMARY OF ARGUMENT.......cccssscccsssssccsssssccsssseccsnsececnsees 2

OTR TOOT ET EN 3

I. THE CONSTITUTIONALITY OF THE TEXAS

STATE CAPITOL TEN COMMANDMENTS

MONUMENT SHOULD BE _~ DECIDED

ACCORDING TO THE TEXT OF THE

CONSTITUTION, NOT JUDICIALLY

FABRICATED TESTS

Judges are sworn to uphold the written

CT ene ee NEON ETO Nee eS

The words of the First Amendment have been

rejected in favor of ad hoc judicial

COUT, cccncensnemnnstiiinnnit

. Textual infidelity has papered over America’s

history ‘and constitutional government that

embraces acknowledgments of God and public

GREUERERNG GF CUTIE, cectenesssnnnernstiniememnnminen

This Court should return to the fixed rule of the

sin eiisiicidiicaiintetiieiniibdnsdtibienisia

ll. THE TEXAS CAPITOL TEN

COMMANDMENTS MONUMENT IS_ NOT

UNCONSTITUTIONAL BECAUSE IT IS NOT A

“LAW RESPECTING AN ESTABLISHMENT OF

BE FI” sccccsscscencccscnseccesscsnsuctsinanetcenenesencnasmiannienaes 15

A. Neither the monument, nor the state’s action in

relation to the monument, is a “law.” ............eeeeeees 16

B. The Texas Capitol monument does not

“respect[] an establishment of religion.” .............+. 18

1. The definition of “religion” ...........ceeeeeeeees 18

2. The definition of “establishment”................0. 24

III ceccnsccnsescccsesessscsasensssnsssssnesonsecstessensnementiamesaneess 28

TABLE OF CITED AUTHORITIES

Page

CASES

_ACLU Nebraska Foundation v. City of Plattsmouth,

Neb., 358 F.3d 1020 (8th Cir. 2004)............. stianhiipemiiapeneiaiil 6

ACLU of Ohio Found. v. Ashbrook,

FED ee Gee es GN tectetntinninmmmntan ee

ACLU of Kentucky v. McCreary County, Ky.,

BO is ee ae eG Fe cettiinciniptitnininenenninsiinniel 6

ACLU of New Jersey v. Schundler,

SO Fe OSes CG, Fe Pevtetctntiniennsciicnctsnsstinnetennsniiiit 5

Adland v. Russ, 307 F.3d 471 (6th Cir. 2002) ......................000e 6

Anderson v. Salt Lake Counties C orp.,

FS Fede BP CE es ED ectanitpnnitmneratinennnininnicnndl 6

Bauchman for Bauchman v. West High Sch.,

Se Oe ee Ce ees PD iesitsiicnbinnsttitanssecnieentoipintetannetin 5

Books v. City of Elkhart, Ind., 235 F.3d 292

CFE, Bee vvccrrenniniiansiaeniiontiatiinicininintiin’ 6, 26

Cantwell v. Connecticut, 310 U.S. 296 (1940) ........cceeceeeeeeeeees 21

County of Allegheny v. ACLU, 492 U.S. 573 (1989)........... 7, 16

Davis v. Beason, 133 U.S. 333 (1890)......ccceeceseeeeeeseeeeees 18, 19

Dred Scott v. Sandford, 60 U.S. 393 (1856)...........:cceeeeees 14-15

Edwards v. Aguillard, 482 U.S. 578 (1987) ..........ccceeeeeeeeees 8, 26

Everson v. Bd. of Educ., 330 U.S. 1 (1947)... 18, 20, 21

Freethought Soc’ y v. Chester County,

FPO Fee OF GH ED recitiennntontnieemennenneinnnl 6

Girouard v. United States, 328 U.S. 61 (1946) ............ccecceeeee 19

Glassroth v. Moore, 229 F. Supp. 2d 1290

COED. Rilp, Ti entsinccestecictnecrssnnitiariciensnienninianies 8,9

Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003)............ 6,9

Helms v. Picard, 151 F.3d 347 (Sth Cir. 1998) ............ccceeeeeeeees 5

Holmes vy. Jennison, 39 U.S. (14 Peters) 540 (1840).............00 4

Indiana Civil Liberties Union, Inc. v. O’ Bannon,

29D F358 FES (7s Cis. BRON) ccoveccncevereceseocesesovenensosonssonsenoones 6

King v. Richmond County, 331 F.3d 1271

(BOG CO, Fie Rictecntcnerscecincencosnecssicivemnuniiinmmmnnnenannel 6, 26

Koenick v. Felton, 190 F.3d 259 (4th Cir. 1999) 00.0... ecseeeeeees 5

Rae o. Dita, Sa Gk FEE COED determin 9

Lemon v. Kurtzman, 403 U.S. 603 (1971) .........cccecceeeeseeeees 8, 16

Lynch v. Donnelly, 465 U.S. 668 (1984) .......cccecsceeeeeeeees 4,9, 22

Marbury v. Madison, 5 U.S. (1 Cranch) 137

(Fe scectcsartacsnsninnincicmnmumnnenintiitineesidaemmecenenent 3,4, 14, 15

Marsh v. Chambers, 463 U.S. 783 (1983) .......:sccsssseeeeeeees 10, 21

Modrovich vy. Allegheny County, Pa., 385 F.3d 397

CREE, BIE crctasitccrsecsetncistssnenmsrenmmninmannnnmnncnne 6

Payne v. Tenn., 501 U.S. 808 (1991) ...sccssssssesesesesssseresesssesesnees 7

Planned Parenthood of Southeastern Penn.

v. Caney, ToS U.S. SSS (IDIZ) ncccivcocccrensvevevosocessesssssseoescsooes 7

Reynolds v. United States, 98 U.S. 145 (1878)......ccssesseeeeeees 18

Richardson v. Goddard, 64 U.S. (How.) 28 (1859)........::00000 17

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) ...10, 16

School Dist. of Abington Tp., Pa. v. Schempp,

FIELD. BES (IGGF) cccccccrsssessessevsropentsssveemenscennsntnn 10, 12, 14

Selman v. Cobb County Sch. Dist., No. Civ.A.1:02-CV-

Bae, GOs Ges BUD. TD, Bi cieniscintinicsitinhdtiensssenciibisennil 9

South Carolina v. United States, 199 U.S. 437 (1905).............. 3

Summum v. City of Ogden, 297 F.3d 995 (10th Cir. 2002) ....... 6

Torcaso v. Watkins, 367 U.S. 488 (1961).........ccccsscessseesseeeeees 18

United States v. Macintosh, 283 U.S. 605 (1931)........ 18, 19-20

Van Orden vy. Perry, 351 F.3d 173 (Sth Cir. 2003)........... passim

Wallace v. Jaffree, 472 U.S. 38 (1985)........c.ccccccscsssscssscsessoesees 8

CONSTITUTIONAL PROVISIONS

as RN a 3

Re Rear eg nae Pee NOEL Te Be 2, 15, 17

pO seer eo aa oes oe ARR Te. 18, 21

STATUTES AND RULES

i ES sag © Spero soiisiiigdieagleiasegeltdh aniline cca ili aa 23

yf ST ake TL ere mee aI he OR NeR SEE 23

pF ot ee enn asc eer m ee 23

OTHER AUTHORITIES

John Adams, The Works of John Adams, Second

President of the United States, vol. IX,

(Boston: Little, Brown, and Co. 1854) .0........ccceeeeeeeeeeeeees 13

I William Blackstone, Commentaries on the Laws of

England (Univ. of Chi. Facs. ed. 1765)............ccccsceeeseeeess 16

Declaration of Independence (1776)..........scccseeseeeeceeereeeeeeees 11

Vil

Thomas M. Cooley, General Principles of Constitutional

Law (Weisman pub. 1998) (1891) .........cccccssessseeeseeeeeeees 24

Fact Sheets: Currency & Coins-History of “In God We

Trust,” United States Department of the ireasury, at

http://www.ustreas.gov/education/fact-sheets/currency/

ie BOG We-tr tet NIA ......ccccccoescscescesccsscccssssescsscscescosscssscsosses 23

Fundamental Orders of Connecticut of 1639, in Colonial

Origins of the American Revolution: A Documentary

History (Donald S. Lutz ed. 1998)..........cccscsccsesrseeseeeeeeeees 1]

William J. Federer, America’s God and Country (1994) ........ 11

William J. Federer, Treasury of Presidential Quotations

CO censnnstnctnsnrnentiisnatiniiitiiiiiiininemanmeninnininniommmmmnnnnies 13

HR. Rep. No. 85-1693 (1934)....cccccccccssccssccssscssescosesessssscsssssees 23

James Hutson, Religion and the Founding of the American

Regeablic (1 D9 )a...ccccccccccccocecscosssvesccssecsosssccsoosscssossossssoosscess 12

Thomas Jefferson, “Virginia Act for Establishing Religious

Freedom” (October 31, 1785), reprinted in 5 The

Founders’ Constitution (P. Kurland & R. Lerner eds.

SIBEE 7) .n1ecscosaseacesssescsceneennsenstadinenientenesionspiusbeeanmssansioneesensoeane 20

James Madison, The Federalist No. 37 (George W. Carey

& James McClellan eds. 2001 )...........scscssssssecssrssseeereeeees 12

J. Madison, Letter to Thomas Ritchie, September 15, 1821,

Il] Letters and Other Writings of James Madison

(Philip R. Fendalll ed. 1865)........ccccccccccsssccsseosccsesecesscccssccsses 4

J. Madison, Memorial and Remonstrance i =a 18, 20

J. Madison, Congressional Debate on the Bill

of Rights, in | Annals of Cong. 757 (1789)

dates G Borden's SB. FBIS) ccccccccccesssccsencsnsvcensnssecsesvese 24-25

vill

Mayflower Compact, reprinted in Our Nation's Archive:

The History of the United States in Documents (Bruun

RE, Tare icicininctiistesiininindsiesititniniinciiipiaiiataiiiatiiiiin 11

Michael W. McConnell, Accommodation of Religion: An

Update and Response to the Critics, 60 Geo. Wash. L.

SEnNs: HEIEYE FOE cncncstinsccpesensennensssnnsitninennssintnmiiiiatinubiadaidenie 25

Northwest Ordinance of 1789, Article III, reprinted in

William J. Federer, America’s God and Country

The Reports of the Committees of the House of

Representatives of the United States for the First

Session of the Thirty-Third Congress, 1854, The House

Jud. Comm., March 27, 1854 (Washington: A.P.O.

NN, Cie icvesecsnesniinnbnnisinenccsiinndsedenigneniitiiaeaiiinitialihinndes 25

The Reports of the Committees of the Senate of the United

States for the Second Session of the Thirty-Second

Congress, 1852-53, The Senate Jud. Comm., January

19, 1853 (Washington: Robert Armstrong, 1853)............. 13

Anson P. Stokes & Leo Pfeffer, Church and State in the

I, GE, FID sicecccciccttncsavecccsinsitietbantnssiin 23

II Joseph Story, Commentaries on the Constitution § 1871

a inhisiettethenahiiniat alae ihn iasile aa odaall 24

George Washington, The Writings of George Washington,

vol. XXX, (Washington, D.C.: U.S. Government

PR, SORTS WU etesitdcticnajcenscccsenesennenntnntasitaitimmnivinuabeiie 12

G. Washington, Thanksgiving Proclamation of October 3,

1789, in 4 The Papers of George Washington,

Presidential Series (W. W. Abbot et al., eds., 1987)......... 23

Noah Webster, American Dictionary of the English

Language (Foundation for American Christian Educ.

ED CORED snscenssicishiiilianiciiensciaismmesshaniciinteecccdiiiiiiaebaaibibniiaie 17

STATEMENT OF INTEREST OF AMICUS CURIAE

Amicus curiae Foundation for Moral Law, Inc.' (“the

Foundation’), is a national public-interest organization based

in Montgomery, Alabama, dedicated to defending — the

inalienable right to acknowledge God, especially when

exercised by public officials. The Foundation promotes a

return in the judiciary (and other branches of government) to

the historic and original interpretation of the United States

Constitution, and promotes education about the Constitution

and the Godly foundation of this country’s laws and justice

systems. To those ends, the Foundation has directly assisted,

or filed amicus briefs, in several cases concerning the public

display of the Ten Commandments.

As it does in the related case McCreary County, Ky vy.

ACLU of Ky. (03-1693), the Foundation has an interest in this

case because it believes that the public posting of the Ten

Commandments represents an important way in_ which

government can acknowledge the sovereignty of God and His

influence (past and present) on this nation. This brief primarily

focuses on whether the text of the Constitution should be

determinative in this case, and whether the displays of the Ten

Commandments at issue violate the words of the Establishment

Clause.

Amicus curiae Foundation for Moral Law, Inc. files this brief by

consent of counsel for both Petitioner (letter filed with the Clerk of the

Court granting blanket consent to any amicus briefs) and Respondents

(letter of consent filed with this brief). Counsel for amicus authored this

brief in its entirety. No person or entity—other than the Foundation, its

supporters, or its counsel—made a monetary contribution to the preparation

or submission of this brief.

SUMMARY OF ARGUMENT

The display of the Ten Commandments on public property

does not violate the Establishment Clause of the First

Amendment because such displays do not implicate the text

thereof, particularly as it was historically defined by common

understanding at the time of the Amendment's adoption. The

Ten Commandments display on the Capitol grounds in Texas is

therefore constitutionally unobjectionable.

It is the responsibility of this Court and any court

exercising judicial authority under the United States

Constitution to do so based on the text of the document from

which that authority is derived. A court forsakes its duty when

it rules based upon case tests that bear no resemblance to or

take the focus away from the text of the constitutional

provision at issue. Amicus urges this Court to return to first

principles in this case and once again to embrace the plain and

original text of the Constitution to guide its Establishment

Clause jurisprudence.

The text of the Establishment Clause states that “Congress

shall make no /aw respecting an establishment of religion.”

U.S. Const. amend. I (emphasis added). When these words are

applied to the Ten Commandments display at issue, it becomes

evident that the display is not a law, it does not dictate religion,

and it does not represent a form of an establishment. Thus, a

textual analysis demonstrates that the display of the Ten

Commandments on the grounds of the Texas State Capitol is

not prohibited by the Establishment Clause.

ARGUMENT

I. THE CONSTITUTIONALITY OF THE TEXAS

STATE CAPITOL TEN COMMANDMENTS

MONUMENT SHOULD BE DECIDED ACCORDING

TO THE TEXT OF THE CONSTITUTION, NOT

JUDICIALLY FABRICATED TESTS.

“The Constitution is a written instrument. As such, its

meaning does not alter. That which it meant when it was

adopted, it means now.” South Carolina v. United States, 199

U.S. 437, 448 (1905). In contrast to this Court’s often

conflicting and always perplexing Establishment Clause

precedents, the “written instrument” has remained unchanged

from its original, ratified, and popularly approved form. It is

time for this esteemed Court to return to the bright-line “test”

that is the very words of the First Amendment of the United

States Constitution.

A. Judges are sworn to uphold the written

constitutional text.

Our constitutional paradigm dictates that the Constitution

itself and all federal laws are the “supreme Law of the Land.”

U.S. Const. art. VI. All judicial officers—from inferior courts

to this Court—take their oath of office to support the

Constitution itself (and no person, office, or government body).

Id. Amicus respectfully submits that this Constitution and its

oath thereto are still relevant today and should control, above

all other competing powers and influences, the decisions of this

Supreme Court.

Chief Justice John Marshall, writing for this Court,

observed in Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803), that the very purpose of a “written” constitution is to

ensure that government officials, including judges, do not

depart from the document's fundamental principles. See

Marbury, 5 U.S. at 176-80. “[I]}t is apparent that the framers of

the constitution contemplated that instrument, as a rule of

government of courts .. .. Why otherwise does it direct the

judges to take an oath to support it?” /d. at 179-80. James

Madison, the “father” of the Constitution, concurred in this

view, stating that, “As a guide in expounding and applying the

provisions of the Constitution . . . .the legitimate meanings of

the Instrument must be derived from the text itself.” J.

Madison, Letter to Thomas Ritchie, September 15, 1821, III

Letters and Other Writings of James Madison 228 (Philip R.

Fendall ed. 1865). This Court once believed that

[ijn expounding the Constitution... , every word must

have its due force, and appropriate meaning; for it is

evident from the whole instrument, that no word was

unnecessarily used, or needlessly added.”

Holmes v. Jennison, 39 U.S. (14 Peters) 540, 570-71 (1840).

B. The words of the First Amendment have been

rejected in favor of ad hoc judicial gerrymandering.

Today. instead of applying, or at most explaining, the

words of the First Amendment, this Court has led the federal

judiciary to reject the very instrument judges are sworn to

uphold: “{A]n absolutist approach in applying — the

Establishment Clause is simplistic and has been uniformly

rejected by the Court... . In each case, the inquiry calls for

line drawing; no fixed, per se rule can be framed.” Lynch vy.

Donnelly, 465 U.S. 668, 678-79 (1984). Left with no fixed

rules, the Fifth Circuit below attempted to draw the “line” in

this case and, at the expense of the actual words of the

Establishment Clause, evaluated the Texas Capitol monument

of the Ten Commandments according to the Lemon test” and

the endorsement test. Indeed, the Fifth Circuit, although it first

> Lemon v. Kurtzman, 403 U.S. 603, 612-13 (1971).

quoted the text of the Establishment Clause, identified the

Lemon test rather than the words of the Constitution as the

“required starting point in deciding contentions that state

displays of symbols and writings with a religious message are

contrary to the First Amendment.” Van Orden v. Perry, 35\1

F.3d 173, 177 (Sth Cir. 2003). As the Lemon test was its

Starting point, the endorsement test was the court’s finish line,

and the text of the First Amendment was never considered

anywhere in between. See id. at 177-82.

Amicus is hardly making a novel point when it suggests

that the alternatives the Court has crafted in the place of the

text of the First Amendment have been weighed in the balance

and been found wanting. Recently, the Sixth Circuit noted in

ACLU of Kentucky v. McCreary County, Kentucky, 354 F. 3d

438, 445 (6th Cir. 2003), the unofficial companion to the

instant case, that several “individual Supreme Court justices

have expressed reservations regarding the test set forth in

[Lemon] for determining whether a particular government

action violates the Establishment Clause.” Other circuits

throughout the country have expressed similar frustration with

current Establishment Clause jurisprudence.”

‘ For example, the Third Circuit Court of Appeals has observed that

“[t}he uncertain contours of these Establishment Clause restrictions

virtually guarantee that on a yearly basis, municipalities, religious groups,

and citizens will find themselves embroiled in legal and political disputes

over the content of municipal displays.” ACLU of New Jersey v. Schundler,

104 F.3d 1435, 1437 (3rd Cir. 1997). The Fifth Circuit has referred to this

area of the law as a “vast, perplexing desert.” Helms v. Picard, 151 F.3d

347, 350 (Sth Cir. 1998), rev'd sub nom. Mitchell v. Helms, 530 U.S. 793

(2000); the Fourth Circuit has labeled it “the often dreaded and certainly

murky area of Establishment Clause jurisprudence.” Koenick v. Felton, 190

F.3d 259, 263 (4th Cir. 1999); and the Tenth Circuit opined that there is

“perceived to be a morass of inconsistent Establishment Clause decisions.”

Bauchman for Bauchman v. West High Sch., 132 F.3d 542, 561 (10th Cir.

1997).

The confusion surrounding this area of the law has, not

surprisingly, yielded a myriad of results throughout the country

concerning public religious displays. Just in recent cases

involving the public display or portrayal of the Ten

Commandments, the Third (twice), Fifth, and Tenth (twice)

Circuits have upheld such displays as constitutional. See

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

2004): Freethought Soc’ y v. Chester County, 334 F.3d 247 (3rd

Cir. 2003); Van Orden v. Perry, 351 F.3d 173 (Sth Cir. 2003);

Anderson y. Salt Lake Counties Corp., 475 F.2d 29 (10th Cir.

2002); Summum v. City of Ogden, 297 F.3d 995 (10th Cir.

2002). On the other hand, in the Sixth (thrice), Seventh

(twice), and Eighth Circuits Ten Commandments displays were

held unconstitutional. See ACLU of Ohio Found. v. Ashbrook,

375 F.3d 484 (6th Cir. 2004); ACLU of Ky. v. McCreary

County, Ky., 354 F. 3d 438, 445 (6th Cir. 2003); Adland v.

Russ, 307 F.3d 471 (6th Cir. 2002); Indiana Civil Liberties

Union, Inc. v. O' Bannon, 259 F.3d 766 (7th Cir. 2001); Books

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

denied, 532 U.S. 1058 (2001); ACLU Nebraska Foundation v.

City of Plattsmouth, Neb., 358 F.3d 1020 (8th Cir. 2004),

vacated pending reh'g. And the Eleventh Circuit, in the same

year, upheld one portrayal of the Ten Commandments in

Georgia and struck down another in Alabama. See King v.

Richmond County, 331 F.3d 1271 (11th Cir. 2003); Glassroth

v. Moore, 335 F.3d 1282 (11th Cir. 2003).”

This confusion and criticism is inevitable. When the policy

of this Court is to eschew a “fixed per se rule,” predictability in

decision-making—a hallmark of true law—is also jettisoned.

The Court has abandoned a First Amendment jurisprudence

* Amicus will spare this Court citation to the various (and varying)

United States district court cases concerning public displays of the Ten

Commandments.

that enjoys an “evenhanded, predictable, and consistent

development of legal principles, [that would] foster[] reliance

on judicial decisions.” Payne v. Tenn., 501 U.S. 808, 827

(1991); see, e.g., Planned Pcventhood of Southeastern Pa. v.

Casey, 505 U.S. 833, 867-68 (1992). Moreover, the

jurisprudential experiments with various extra-textual “tests”

have produced a continuum of disparate results, often because

of an attempt to achieve “neutrality” concerning religion. See

e.g., County of Allegheny v. ACLU, 492 U.S. 573, 593-94

(1989) (“[t]he Establishment Clause, at the very least, prohibits

government from appearing to take a position on questions of

religious beliefs or from ‘making adherence to a religion

relevant in any way to a_person’s standing in the

community’”). But in so doing, this Court has strayed from the

foundational principles of our constitutional system.

If the federal judiciary’s creativity in applying fabricated

Establishment Clause tests were transposed to another area of

the law, the results would be equally unpredictable and

arbitrary.

Imagine if a city decided to enforce speed limits like the

federal judiciary now enforces the Establishment Clause. The

text of the speed limit in “City” may clearly read “55S MPH,”

but as the Fifth Circuit might say, the fext is not the true

“required starting point” for determining whether a driver is

speeding. Cf. Van Orden, 351 F.3d at 177. So it happens that

a police officer in City pulls over a car driven by the mayor

(“Mayor”) and tickets the latter for speeding. At his

subsequent appearance before the city judge, Mayor insists he

was only traveling at 54 m.p.h. and the speed limit was clearly

posted as 55 m.p.h. Judge, however, dismisses such an

assertion as “antiquated” and “too literal” and insists that he

cannot ascertain the definitions of either “speed,” “limit,” or

“55 miles per hour.” Instead, Judge explains, he will first

apply a three-part test to determine whether Mayor was,

indeed, breaking the speed limit:

(1) Purpose: whether Mayor was driving with the

purpose of speeding;

(2) Effect: whether Mayor's travel had the primary

effect of advancing or inhibiting speeding; and

(3) Entanglement: whether Mayor's travel fostered

excessive entanglement between those who speed

. 6

and city government.

Mayor. seeing that an appeal to the law would be futile,

argues that (1) his purpose was to obey the speed limit, and that

regardless of his purpose, he was not driving at a speed greater

than the limit of 55 m.p.h.; (2) he has no idea what effect his

driving had on others” speed, but that at least driving under 55

m.p.h. would set a good example of not speeding; and (3) by

obeying the speed limit as posted he was not fostering

entanglement with those who speed and city government, but

more likely lowering its probability.

Not to be outdone, Judge responds that (1) he thinks

Mayor's proposed purpose is a sham, and that he really

intended to speed, which is enough to violate the speeding

laws: (2) by simply traveling on a highway at speeds faster

than other drivers (say, those traveling at 40 m.p.h. or those on

the side of the road) the Mayor’s driving would have the effect

or appearance of speeding, or at least the promotion of

* See Glassroth v. Moore, 229 F. Supp. 2d 1290, 1312-14 (M.D. Ala.

2002) (refusing to define “religion” under the First Amendment).

* See Lemon, 403 U.S. at 612-13.

~ See Edwards vy. Aguillard, 482 U.S. 578 (1987); Wallace v. Jaffree,

472 U.S. 38 (1985).

speeding;* and (3) by driving in his government car and on

government-maintained highways, the Mayor fosters

entanglement between his “illegal” driving and government

services and personnel.’ Any way he looks at it, Judge can

find that Mayor was speeding.

But Judge is not finished. Even if Mayor withstands his

three-part test, Judge can also consider whether Mayor's

driving endorsed or promoted speeding.” A “reasonable

person,” explains Judge, observing the Mayor traveling at a

faster speed than other drivers (or than those on the side of the

road) would clearly perceive that Mayor was speeding. Based

on that “objective standard,” the reasonable observer would

feel that Mayor favored speeders over non-speeders, making

them feel like “outsiders” in the travel community. Whether

Mayor was actually going faster than 55 m.p.h., Judge

explains, is not as important as whether Mayor’s Griving makes

observers and other drivers fee/ that Mayor is speeding. '!

Additionally, Judge continues, he might consider whether

Mayor’s driving psychologically coerces slow drivers to travel

at Mayor’s speed.'* Whether Mayor is actually speeding is

irrelevant, as is whether he is in any way actually forcing other

drivers to match his speed. If other drivers would feel

awkward or left out seeing Mayor pass them on the highway—

* See Selman v. Cobb County Sch. Dist., No. Civ.A.1:02-CV-2325-C

(N.D. Ga. Jan. 13, 2005) (holding that textbook sticker describing evolution

as a “theory, not a fact” has effect of advancing religion).

” See Glassroth, 229 F. Supp. 2d at 1304 n.2.

See Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J..

concurring).

'' See Glassroth v. Moore, 335 F.3d 1282, 1297 (11th Cir. 2003).

"See Lee vy. Weisman, 505 U.S. 577 (1992).

particularly young, impressionable drivers—Mayor is guilty of

: 13 . : — Fas

speeding. Such coercive traveling is impermissible.

At this point, Judge winks and suggests that he could let

Mayor go if Mayor could prove that his driving was no faster

than the driving speed of the legislators who established the

first speed limit back in 1909. But Judge and Mayor both

knew that the 1909 legislators were not traveling (and could

not travel) at 54 m.p.h. With this “historical practice”

exception clearly out of Mayor’s reach, Judge notes that, in any

event, he had let someone go with that excuse only once,'* and

he would not let it happen again.

Judge instructs Mayor that the best thing for him to do is

probably to travel at about 5 m.p.h. from now on, or maybe

even to just stay away from driving altogether: after all, the

rule of law must be upheld or else citizens will lose faith in the

speeding laws.

C. Textual infidelity has papered over America’s

history and constitutional government that embraces

acknowledgments of God and public expressions of

religion.

This Court's creativity in interpreting the Establishment

Clause was clearly illustrated in School Dist. of Abington Tp. v.

Schempp, 374 U.S. 203 (1963), in which the Court claimed that

“[iJn the relationship between man and religion, the State is

firmly committed to a position of neutrality. Though the

application of that rule requires interpretation of a delicate sort,

the rule itself is clearly and concisely stated in the words of the

First Amendment.” /d. at 226. The Court wove together truth

and error in this passage in an effort to make its distortions of

the First Amendment sound intellectually palatable. It is

'* See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

'* See Marsh v. Chambers, 463 U.S. 783 (1983).

manifestly true that “the words of the First Amendment”

“clearly and concisely state[]” the rule of decision in cases

involving these issues; but, it is categorically false that these

cases require “interpretation of a delicate sort” that yields the

kind of extra-constitutional tests which have plagued this area

of law for so long. It is likewise erroneous that neutrality is the

polestar of the First Amendment’s Religion Clauses.

Our United States was never intended to be “neutral” on

the issue of God. The Pilgrims landing at Plymouth Rock in

1620 each signed the Mayflower Compact, which declared that

they had “undertaken for the Glory of God and Advancement

of the Christian Faith, and the Honour of our King and

Country, a voyage to plant the first colony in the northern Parts

of Virginia...” Our Nation's Archive: The History of the

United States in Documents 46 (Bruun & Crosby eds. 1999).

In the Fundamental Orders of Connecticut of 1639, the first

permanent governing document of that colony and a forerunner

of several colonial constitutions, the people stated that they

desired “an orderly and decent Government established

according to God, to order and dispose of the affairs of the

people at all seasons as occasion shall require.” Colonial

Origins of the American Revolution: A Documentary History

211 (Donald S. Lutz ed. 1998).

The prominence of God in our nation’s development

continued during and after the American Revolution. God is

referenced four times in the Declaration of Independence: He is

called our “Creator” Who “endowed” us with “certain

unalienable rights”; “Nature’s God” Who instituted the “Laws

of Nature”; the “Supreme Judge of the world”; and the One on

Whom the Founding Fathers called upon for “the protection of

divine Providence,” as they pledged their lives, fortunes, and

“sacred Honor” to the cause of independence. See Declaration

of Independence (U.S. 1776) (emphasis added).

Demonstrating that these references were not mere rhetorical

flourish, the Continental Congress, on November |, 1777,

declared a day of national thanksgiving even in the midst of the

war for independence because they believed “it is the

indispensable Duty of all Men to adore the superintending

Providence of Almighty God; to acknowledge with Gratitude

their Obligation to him for benefits received, and to implore

such further Blessings as they stand in Need of.” First

Nationel Proclamation of Thanksgiving, reprinted in William

J. Federer, America’s God and Country 147 (1994). — James

Madison stated in Federalist No. 37 that he believed that those

who had participated in the Constitutional Convention of 1787

had “surmounted with an unanimity almost unprecedented” “so

many difficulties” that “[i}t is impossible, for the man of pious

reflection, not to perceive in it a finger of that Almighty Hand,

which has been so frequently and signally extended to our

relief in the critical stages of the revolution.” J. Madison, The

Federalist No. 37 185 (George W. Carey & James McClellan

eds. 2001).

Not only was the nation at its founding not neutral toward

God, but also, as this Court noted in Schempp, 374 U.S. at 213,

“religion has been closely identified with our history and

government... The Declaration’s primary author, Thomas

Jefferson, observed that, “No nation has ever existed or been

governed without religion. Nor can be.” T. Jefferson to Rev.

Ethan Allen, quoted in James Hutson, Religion and the

Founding of the American Republic 96 (1998). George

Washington similarly declared that, “While just government

protects all in their religious rights, true religion affords to

government its surest support.” The Writings of George

Washington 432, vol. XXX, (1932). The Northwest Ordinance

of 1787, reenacted by the First Congress in 1789 and

considered like the Declaration of Independence to be part of

this nation’s organic law, declared that, “Religion, morality,

and knowledge [are] necessary to good government.”

Northwest Ordinance of 1789, Article Ill, reprinted in

America’s God and Country, at 484.

Concerning the Constitution in particular, John Adams

observed that, “[W]e have no government armed with power

capable of contending with human passions unbridled by

morality and religion. . . . Our constitution was made only for a

moral and religious people. It is wholly inadequate to the

government of any other.” The Works of John Adams, Second

President of the United States 229, vol. IX (1854).

The United States Congress affirmed these sentiments in a

Senate Judiciary Committee report concerning _ the

constitutionality of the Congressional chaplaincy in 1853:

[The Founders] had no fear or jealousy of religion itself,

nor did they wish to see us an irreligious people; they did

not intend to prohibit a just expression of religious devotion

by the legislators of the nation, even in their public

character as legislators; they did not intend to spread over

all the public authorities and the whole public action of the

nation the dead and revolting spectacle of atheistical

apathy.

S. Rep. No. 32-376 (1853).

As late as 1954 when Congress placed the words “under

God” in the Pledge of Allegiance, President Dwight

Eisenhower explained that such had been done to “reaffirm{]

the transcendence of religious faith in America’s heritage and

future; in this way we shall constantly strengthen those

spiritual weapons which forever will be our country’s most

powerful resource in peace and war.” Speech of June 14,

1954, reprinted in William J. Federer, Treasury of Presidential

Quotations 313-14 (2004).

These quotes from important figures throughout the history

of the United States illustrate what this Court affirmed in

Schempp: “|T}hat the Founding Fathers believed devotedly that

there was a God and that the unalienable rights of man were

rooted in Him is clearly evidenced in their writings, from the

Mayflower Compact to the Constitution itself.” 374 U.S. at

213. Thus, the Constitution was not intended to require, nor

until relatively recently was it interpreted to require, that God

must be devalued in the public square in an attempt to achieve

“neutrality” which supposedly prevents the possibility of some

passerby suffering offense at the mention of God.

D. This Court should return to the fixed rule of the

constitutional text.

Despite the obvious intention of the Constitution, made

manifestly plain by the text of the First Amendment, this Court

has elected to stray from text and instead has formulated tests,

e.g., Lemon, “endorsement,” “coercion,” in the name of a kind

of “neutrality” toward religion that is historically inaccurate

and practically impossible to achieve. When the Court does

this, it steps outside its proper role as an interpreter of the text

and lays aside judicial robes in exchange for legislative pens,

which is exactly what the Constitution, and the Establishment

Clause in particular, is supposed to prevent.

Chief Justice Marshall asked in Marbury, “Why does a

judge swear to discharge his duties agreeably to the

constitution of the United States, if that constitution forms no

rule for his government?” 5 U.S. at 180. One dissenter in the

infamous case of Dred Scott chastised the errant majority for

not only rejecting the fundamental worth of a person, but the

fundamental principles of constitutional interpretation. This

Court would do well to consider Justice Benjamin Curtis's

148-year-old but still-relevant warning:

An: when a strict interpretation of the Constitution,

according to the fixed rules which govern the interpretation

of laws, is abandoned, and the theoretical opinions of

individuals are allowed to control its meaning, we have no

longer a Constitution; we are under the government of

individual men, who for the time being have power to

declare what the Constitution is, according to their own

views of what it ought to mean. When such a method of

interpretation of the Constitution obtains, in place of a

republican Government, with limited and defined powers,

we have a Government which is merely an exponent of the

will of Congress; or what, in my opinion, would not be

preferable, an exponent of the individual political opinions

of the members of this court.

Dred Scott v. Sandford, 60 U.S. 393, 620-621 (1856) (Curtis,

J., dissenting).

For too long, the “strict interpretation of the Constitution”

has been abandoned, and “fixed rules” no longer govern

Establishment Clause cases. This Court ought to decide this

case according to the plain, <.nd still unsullied, text of the First

Amendment’s Establishment Clause. See Marbury, 5 U.S. at

180.

Il. THE TEXAS CAPITOL TEN COMMANDMENTS

MONUMENT IS NOT UNCONSTITUTIONAL

BECAUSE IT IS NOT A “LAW RESPECTING AN

ESTABLISHMENT OF RELIGION.”

The First Amendment states, in relevant part, “Congress

shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof... .” U.S. Const. amend

1. Whether the Ten Commandments were displayed alone or

surrounded by a diverse context of other monuments, in no

way could Texas’s act of erecting the Ten Commandments be a

“law respecting an establishment of religion.”"”

'S Amicus will not address herein the compelling argument that the

Establishment Clause, with its restriction upon only “Congress,” should not

A. Neither the monument, nor the state’s action in

relation to the monument, is a “law.”

The Establishment Clause on its face restricts “laws,” and

this Court has recognized that the Clause was designed to

restrict the exercise of “legislative power.” See Santa Fe

Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000). In

“religious display” cases, however, this Court has, in effect,

expanded its own power by unconstitutionally amencing the

Establishment Clause, ruling that the Clause may be violated

either by a “statute or practice.” See Allegheny, 492 U.S. at

592. Contrary to Lemon's claim that “[t}he language of the

Religion Clauses of the First Amendment is at best opaque”

and that this Court, therefore, “must draw lines” delineating

what is constitutionally permissible, the text of the

Establishment Clause contains a definite, straightforward

meaning. Lemon, 403 U.S. at 612.

In its analysis of this case, the Fifth Circuit, although it

arrived at the correct result, incorrectly assumed that the

actions of the state in erecting or maintaining the Ten

Commandments monument on the Capitol grounds amounted

to a “law.” However, not every action taken by a state under

its constitutional and statutory authority constitutes a law.

At the time of the ratification of the First Amendment, Sir

William Blackstone had defined a “law” as “a rule of civil

conduct . . . commanding what is right and prohibiting what is

wrong.” I W. Blackstone, Commentaries on the Laws of

England 44 (U. Chi. Facsimile Ed. 1765). Noah Webster's

1828 Dictionary states that “{l]aws are imperative or

mandatory, commanding what shall be done; prohibitory,

be “incorporated” against the states and local governments through the

guise of the Fourteenth Amendment. Such an argument is a worthy pursuit

for another briet (or book), but is hardly necessary to the textual argument

raised herein.

restraining from what is to be forborn; or permissive, declaring

what may be done without incurring a penalty.” N. Webster,

American Dictionary of the English Language (Foundation for

American Christian Educ. 2002) (1828) (emphasis in original).

By erecting the Capitol Ten Commandments monument,

Texas has made no law commanding any action from its

citizens or restraining them from any action or conduct that

they wish to pursue. The monument was erected by a simple

1961 resolution fueled by a desire to “‘honor the youth of

Texas who are members of the By Scouts.’ Van Orden, 351

F.3d at 179. Texas has neither acted upon nor implied any

intent to command its citizens to perform any action or to

prohibit any conduct by means of the Capitol monument. The

Ten Commandments monument is simply a granite display on

state property, not a law under the First Amendment.

Similar to an executive Thanksgiving proclamation, the

Capitol monument “has not the force of law, nor was it so

intended.” Richardson v. Goddard, 64 U.S. (How.) 28, 43

(1859) (“The proclamation . . . is but a recommendation. . . .

The duties of fasting and prayer are voluntary, and not of

compulsion, and holiday is a privilege, not a duty... . Wis an

excellent custom, but it binds no man’s conscience or requires

him to abstain from labor’). At most, it could be argued that

the Texas monument serves as a reminder to citizens of certain

standards of conduct. Thus, because the Texas Ten

Commandments monument is not a “law,” Texas has not

violated the Establishment Clause.

B. The Texas Capitol monument does not “respect[] an

establishment of religion.”

The Ten Commandments monument at issue does not

violate the Establishment Clause because it does not “respect,”

i.e., concern or relate to, “an establishment of religion.” U.S.

Const. amend. I (emphasis added.)

1. The definition of “religion”

The original definition of “religion” as used in the First

Amendment was provided in Article I, § 16 of the 1776

Virginia Constitution, in James Madison's Memorial and

Remonstrance, and was embraced by this Court in Reynolds vy.

United States, 98 U.S. 145 (1878), and Davis v. Beason, 133

U.S. 333 (1890). It was repeated by Chief Justice Charles

Evans Hughes in his dissent in United States v. Macintosh, 283

U.S. 605 (1931), and the influence of Madison and _ his

Memorial on the shaping of the First Amendment was

emphasized in Everson v. Bd. of Educ., 330 U.S. 1 (1947).

“Religion” was defined as: “The duty which we owe to our

Creator, and the manner of discharging it.” Va. Const. of

1776, art. I, § 16; see also Reynolds, 98 U.S. at 163-66;

Beason, 133 U.S. at 342; Macintosh, 283 U.S. at 634 (Hughes,

C.J., dissenting); Everson, 330 U.S. at 13. According to the

Virginia Constitution, those duties “can be directed only by

reason and conviction, and not by force or violence.” Va.

Const. of 1776, art. I, § 16.

In Reynolds, this Court considered and rejected the

argument that the First Amendment definition of religion

included the practice of polygamy. In arriving at its

conclusion, the Court applied the definition of “religion”

contained in the Virginia Constitution as controlling the

meaning of that term in the First Amendment. Reynolds, 98

U.S. at 163-66. It thereby found that the duty not to enter into

a polygamous marriage was not religion—that is, a duty owed

solely to the Creator—but was “an offense against [civil]

society.” and therefore, “within the legitimate scope of the

power of... civil government.” /d.

The U.S. Supreme Court later reaffirmed the discussions of the

meaning of the First Amendment found in Reynolds, Beason, and the

Macintosh dissent in Torcaso v. Watkins, 367 U.S. 488, 492 n.7 (1961).

In Beason, the Court affirmed its decision in Reynolds,

reiterating that the definition that governed both the

Establishment and Free Exercise Clauses was the

aforementioned Virginia constitutional definition of “religion.”

The term “religion” has reference to one’s views of his

relations to his Creator, and to the obligations they impose

of reverence for his being and character, and of obedience

to his will. . . . The first amendment to the constitution, in

declaring that congress shall make no law respecting the

establishment of religion or forbidding the free exercise

thereof, was intended to allow everyone under the

jurisdiction of the United States to entertain such notions

respecting his relations to his Maker and the duties they

impose as may be approved by his judgment and

conscience ....

133 U.S. at 342 (emphasis added).

In Macintosh, this Court’s decision resulted in the denial of

the respondent’s application for citizenship by naturalization

because the respondent refused to take an oath to bear arms in

defense of the United States on the ground that he would have

to believe the war in question was morally justified before he

would take such action. 283 U.S. at 613-14, 618.'’ Chief

Justice Hughes dissented in Macintosh, believing that the

respondent’s refusal to take the oath based on religious

principle ought not disqualify him from citizenship. In part,

Chief Justice Hughes reasoned:

The essence of religion is belief in a relation to God

involving duties superior to those arising from any human

relation. As was stated by Mr. Justice Field, in Davis v.

Beason, .. . : “The term ‘religion’ has reference to one’s

'’ The Macintosh decision was later overturned by this Court in

Girouard y. United States, 328 U.S. 61 (1946).

views of his relations to his Creator, and to the obligations

they impose of reverence for his being and character, and of

obedience to his will.” One cannot speak of religious

liberty, with proper appreciation of its essential and historic

significance, without assuming the existence of a belief in

supreme allegiance to the will of God.

Macintosh, 283 U.S. at 633-34 (Hughes, C.J., dissenting).

Thus, Chief Justice Hughes's dissent in Macintosh was rooted

in the historic constitutional definition of religion, a definition

that presupposes God.

Sixteen years later in Everson, this Court noted that it had

“previously recognized that the provisions of the First

Amendment, in the drafting and adoption of which Madison

and Jefferson played such leading roles, had the same objective

and were intended to provide the same protection against

governmental intrusion on religious liberty as the Virginia

statute [Jefferson's 1785 Act for Establishing Religious

Freedom).” Everson, 330 U.S. at 13. The “Virginia statute”

explicitly founded its declaration of religious freedom on the

basis that “Almighty God hath created the mind free” and that

“all attempts to influence it by temporal punishments, or

burthens, or by civil incapacitations . . . are a departure from

the plan of the Holy Author of our religion... .” Virginia Act

for Establishing Religious Freedom (1785), reprinted in 5 The

Founder's Constitution 84 (Kurland and Lerner eds., U. Chi.

Press: 1987).

The Everson Court also emphasized the importance of

Madison’s “great Memorial and Remonstrance,” which

“received strong support throughout Virginia,” and played a

pivotal role in garnering support for the passage of the Virginia

statute. /d. at 12. Indeed, Madison’s Memorial offered as the

first ground for the disestablishment of religion the express

definition of religion found in the 1776 Virginia Constitution.

For good measure, Justice Rutledge attached Madison's

Memorial as an appendix to his dissent in Everson which was

joined by Justices Frankfurter, Jackson, and Burton. See id. at

64.

Thus, this Court has recognized that the constitutional

definition of the term “religion” is “[t]he dut[ies] which we

owe to our Creator, and the manner of discharging [them].”

Va. Const. of 1776, art. I, § 16; see also, Cantwell v.

Connecticut, 310 U.S. 296, 303, (1940) (“The constitutional

inhibition of legislation on te subject of religion . . . forestalls

compulsion by law of the acceptance of any creed or the

practice of any form of worship”). Assuming, arguendo, that

Texas’s act of erecting the Capitol Ten Commandments

monument is in some sense a “law,” such an act cannot be

considered a law concerning “religion” because, while the Ten

Commandments themselves address duties owed to the

Creator, they do not address the manner of discharging those

duties. For example, the commandment to “honor thy father

and thy mother” does not dictate how this command is to be

fulfilled; indeed, different religions and sects (i.e.,

Protestantism, Catholicism, Judaism, Islam, etc.) detail

different ways in which to fulfill this commandment.

Something that constitutes a “religion” under the Establishment

Clause must inform the follower not only what to do (or not

do), but also how those commands and prohibitions are to be

carried out. The Ten Commandments, by themselves, do not

do both of these and hence cannot be considered a “religion”

under the constitutional definition of the term.

Noticeably absent from this definition is any implication

that age or context plays a factor in whether a particular

practice or display is constitutionally permissible. The Fifth

Circuit below opined that “[h]ad this monument been recently

installed, the inference of religious purpose would have been

stronger.” 351 F. 3d at 181-12; see Marsh v. Chambers, 463

sete

U.S. 783 (1983). But a determination that something is a

“religion” turns on content, not age. The length of time a

practice has been performed by public officials or the length of

time a display has been present on public property has

absolutely nothing to do with whether it is a religion. This

becomes readily apparent if one contrasts, for example,

Judaism and Hare Krishna: both of those religions relate what

duties they believe are owed to the Creator and spell out the

manner in which each maintains those duties should be carried

out, but Judaism has a much longer heritage than Hare Krishna.

Regardless of their relative ages, both are religions under the

First Amendment.

In a similar illogical vein, the Fifth Circuit observed that

while the Texas Ten Commandments monument is not

displayed in a “museum setting,” which would wholly negate

endorsement, the manner in which the seventeen monuments

are presented on the grounds of the Capitol tour supports the

conclusion that a reasonable viewer would not see this display .

. as a State endorsement of the Commandments’ religious

message ....° 351 F. 3d at 181; see Lynch v. Donnelly, 465

U.S. 668 (1984). Again though. context does not define

whether something is a religion, content does. Whether the

Commandments are displayed in a museum or a public park,

and whether they are displayed alone or are surrounded with

other things is irrelevant to whether they prescribe the duties

we owe to the Creator and the manner of discharging them, i.e.,

whether they fall under the constitutional definition of religion.

The Texas monument is not religion; rather by displaying

the Ten Commandments Texas is acknowledging God as the

moral and historical foundation of the country’s legal system.”

ix bal

Petitioner Van Orden concedes, even bemoans, that Texas’s Ten

Commandment monument “unequivocally proclaims that there is a God and

that God has decreed rules for religious observance and non-religious

Examples of such acknowledgments are replete throughout our

history. Thanksgiving proclamations encouraging citizens to

offer gratitude to God for “His kind care and protection” have

been issued by Presidents of the United States ever since

George Washington issued the first one on October 3, 1789.

See 4 The Papers of George Washington, Presidential Series

131-32 (W. W. Abbot et al. eds. 1987). Since the passage of

the Judiciary Act of 1789, all federal judicial officers have

been required to take an oath of office swearing to support the

United States Constitution that concludes with the phrase, “So

help me God.” See 28 U.S.C. § 453.

“In God We Trust” was first placed on the nation’s coinage

in 1864 to “express[{] in a few words,” as then-Secretary of the

Treasury Salmon P. Chase explained, “the recognition of the

trust of our people in God.” Anson P. Stokes & Leo Pfeffer,

Church and State in the United States 568 (rev. ed. 1964). The

motto has appeared on all U.S. coins since 1938 and on all

currency since 1964. Fact Sheets: Currency & Coins—History

of “In God We Trust,” United States Department of the

Treasury, at — http://www.ustreas.gov/education/fact-sheets/

currency/in-god-we-trust.html. Congress made “In God We

Trust” our official national motto in 1956. 36 U.S.C.A. § 302.

As was previously mentioned, the words “under God” were

added to the Pledge of Allegiance in 1954. See 4 U.S.C. § 4.

The report from the House of Representatives that

accompanied the legislation observed that, “[f]rom the time of

our earliest history our peoples and our institutions have

reflected the traditional concept that our Nation was founded

on a fundamental belief in God.” H.R. Rep. No. 83-1693, at 2

(1954).

conduct.” Brief for Petitioner at 37. Van Orden fails, however, to

demonstrate or even assert that this constitutes “religion” under the proper

constitutional definition of the word.

Posting the Ten Commandments, particularly on public

grounds where the law is rendered and adjudicated, represents

another acknowledgment of God fitting with the tradition and

obligation performed throughout the nation’s history. Under

no version of the facts presented could it be said that the Texas

Capitol monument represents an attempt by the state to dictate

the duties that its citizens owe to the Creator, or to enforce the

manner in which the citizens should discharge those duties.

Consequently, the Texas Ten Commandments monument is not

a law respecting an establishment of “religion.”

2. The definition of “establishment”

Even if it is assumed that the Ten Commandments

monument is a “law” under the First Amendment—which it is

not—and even if it is assumed that the monument pertains to

“religion” under the First Amendment—which it does not—the

Texas Capitol monument does not represent an “establishment”

of religion.

An “establishment” of religion, as understood at the time of

the adoption of the First Amendment, involved “the setting up

or recognition of a staté church, or at least the conferring upon

one church of special favors and advantages which are denied

to others.” Thomas M. Cooley, General Principles of

Constitutional Law, 213 (Weisman pub. 1998) (1891). Joseph

Story explained in his Commentaries on the Constitution that

“[t}he real object of the amendment was . . . to prevent any

national ecclesiastical establishment, which should give to an

[sic] hierarchy the exclusive patronage of the national

government.” II J. Story, Commentaries on the Constitution §

1871 (1833). In the congressional debates concerning the

passage of the Bill of Rights, James Madison stated that he

“apprehended the meaning of the [Establishment Clause] to be,

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.” | Annals of Cong.

757 (1789) (Gales & Seaton’s ed. 1834). The House Judiciary

Committee in 1854 summarized these thoughts in a report on

the constitutionality of chaplains in Congress and the army and

navy, Stating that an “establishment of religion”

must have a creed defining what a man must believe; it

must have rites and ordinances which believers must

observe; it must have ministers of defined qualifications, to

teach the doctrines and administer the rights; it must have

tests for the submissive, and penalties for the non-

conformist. There never was an established religion without

all these.

H.R. Rep. No. 33-124 (1854).

At the time of its adoption, therefore, “[t}he text [of the

Establishment Clause] . . . meant that Congress could neither

establish a national church nor interfere with the establishment

of state churches as they existed in the various states.”

Michael W. McConnell, Accommodation of Religion: An

Update and Response to the Critics, 60 Geo. Wash. L. Rev.

685, 690 n.19 (1992).

The Texas monument of the Ten Commandments does not

in any fashion represent the setting up of a state-sponsored

church, nor does it in any way lend government aid to one faith

over another. Indeed, the Texas monument “displays a

nonsectarian version of the text of the Ten Commandments,”

clearly avoiding any favoritism of a religious sect. Van Orden,

351 F.3d at 176. Moreover, the “monument requires virtually

no maintenance.” /d.

This Court and multiple lower courts—including the Fifth

Circuit below—have recognized that the Ten Commandments

hold an important place in this country’s historical and legal

tradition.

Even those who would see the decalogue as wise counsel

born of man’s experience rather than as divinely inspired

religious teaching cannot deny its influence upon the civil

and criminal laws of this country. That extraordinary

influence has been repeatedly acknowledged by the

Supreme Court and detailed by scholars. Equally so is its

influence upon ethics and the ideal of a just society.

351 F.3d at 181 (emphasis added). The court below concluded

that Tex~s’s monument did not endorse religion, but added:

To say this is not to diminish the reality that it is a sacred

text to many, for it is also a powerful teacher of ethics, of

wise counsel urging a regimen of just governance among

free people. The power of that counsel is evidenced by its

expression in the civil and criminal laws of the free world.

No judicial decree can erase that history and its continuing

influence on our laws—there is no escape from its secular

and religious character. There is no constitutional right to

he free of government endorsement of its own laws.

Id. at 182 (emphasis added). See also Edwards vy. Aguillard,

482 U.S. 578. 594 (1987) (“the Ten Commandments [did not]

play|] an exclusively religious role in the history of Western

Civilization.”): King v. Richmond County, 331 F.3d 1271, 1282

(11th Cir. 2003) ("Much of our private and public law derives

from these final six commandments.”); and Books v. City of

Elkhart, Ind., 235 F.3d 292, 302 (7th Cir. 2000), cert. denied,

532 U.S. 1058 (2001) (“The text of the Ten Commandments no

doubt has played a role in the secular development of our

society and can no doubt be presented by the government as

playing such a role in our civic order.”).

Given the undeniable general influence of the Ten

Commandments in this country’s historical and legal tradition

and the lack of any showing that Texas’s Capitol monument

shows support for or gives aid to a particular church or

religious sect, the monument cannot be said to concern an

“establishment” of religion. Therefore, no portion of the

Establishment Clause of the First Amendment prohibits public

displays of the Ten Commandments in Texas, Kentucky, or

any state in this nation.

CONCLUSION

For the reasons stated, this Honorable Court should affirm

the Court of Appeals’ decision below and hold that the Ten

Commandments monument ot issue does not violate the United

States Constitution, that 1s, the text thereof.

Respectfully submitted,

Roy S. MOORE