Amicus Curiae Brief — Van Orden v. Perry

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No. 03-1500

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jn The

Supreme Court of the United States

THOMAS VAN ORDEN,

Petitioner,

RICK PERRY, et ai.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

BRIEF OF FRATERNAL ORDER

OF EAGLES AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

GEORGE A. MILLER KELLY SHACKELFORD

GRAND AERIE LEGAL ADVISOR Counsel of Record

FRATERNAL ORDER OF EAGLES HIRAM S. SASSER III

1106 Fifth Avenue JONATHAN M. SAENZ

Pittsburgh, PA 15219 LIBERTY LEGAL INSTITUTE

903 E. 18th, Ste. 230

Plano, TX 75074

(972) 423-3131

Counsel of Amicus Curtae

COCKLE LAW BRIEF PRINTING CO) (800) 225 6964

OR CALL COLLECT (402) 442-2831

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

SUMMARY OF THE ARGUMENT

Il. FACTUAL CONTENT OF MONUMENT

Ill. THE TEN COMMANDMENTS DISPLAY

DOES NOT VIOLATE THE ESTABLISH-

MENT CLAUSE

A. THE TEN COMMANDMENTS ARE PART

OF SECULAR HISTORY

B. TEN COMMANDMENT DISPLAYS, IN

THE PROPER CONTEXT AS PRESENT IN

THIS CASE, ARE CONSTITUTIONAL

C. THIS MONUMENT DOES NOT EN-

DORSE RELIGION

GOVERNMENT SHOULD BE NEUTRAL

TOWARD RELIGION, NOT CENSOR RELIG-

TABLE OF AUTHORITIES

Page

CASES:

American Civil Liberties Union of Ohio v. Capitol

Square Review and Advisory Board, 243 F.3d 289

(Vo 3 | ee 14

Anderson v. Salt Lake City Corporation, 475 F.2d

29 (10th Cir. 1973), cert. denied, 414 U.S. 879

(1973)........ seoccouuseessssesesneindeettitiasasiannnininnnnn 13

Board of Education of Westside Com. Schools v.

_Mergens, 496 U.S. 226 (1990) .-.......scccceseeseeseees 20, 22, 23

Capitol Square Review and Advisory Board v.

Pinstte, 615 U.S. TES (IGBGD .ccoccceecsssssecssnseseninmiiammanianan 16

Chaudhuri v. State of Tennessee, 130 F.3d 232 (6th

Cir. 1997), cert. denied, 523 U.S. 1024 (1998)............... 15

City of Elkhart v. Books, 532 U.S. 1058 (2001).......... veveeee 15

County of Allegheny v. American Civil Liberties

Union, 492 U.S. 573 (1989) ...........::cccceeeeeeeee 11, 17, 19, 20

Engel v. Vitale, 370 U.S. 421 (1962)...............:scccccsessseeeeees 18

Lamb’s Chapel v. Center Moriches Union Free

School District, 508 U.S. 384 (1993) ...............ccccceeeeeeees 20

Lemon v. Kurtzman, 403 U.S. 602 (1971)............. 14, 15, 16

Lynch v. Donnelly, 465 U.S. 668 (1984) ................. 11, 15, 21

Marsh v. Chambers, 463 U.S. 783 (1983) ....................0000 19

McGowan v. Maryland, 366 U.S. 420 (1961)................00+: 11

School District of Abington Township, Pennsylvania

v. Schempp, 374 U.S. 203 (1963)..........scccseeceeeeseseereseees 18

State v. Freedom from Religion Foundation, 898

P.2d 1013 (Colo. 1995), cert. denied, 516 U.S. 1111

TABLE OF AUTHORITIES -— Continued

Page

State of Colorado v. Freedom from Religion Foun-

dation, Inc., 898 P.2d 1013 (Colo. 1995).................... 7,18

Stone v. Graham, 449 U.S. 39 (1980)..................06. 11, 12, 13

Suhre v. Haywood Cty., 55 F. Supp.2d 384 (W.D.N.C.

I _____ssnennannsasorontocoonocse 14

Widmar v. Vincent, 454 U.S. 263 (1981) ............... ccc ece eee 20

Zorach v. Clauson, 343 U.S. 306 (1952)...............cccceeeeeeees 18

OTHER AUTHORITIES:

Harold Berman, Individualistic and Communi-

tarian Theories of Justice: An Historical Ap-

proach, 21 U. Cal. Davis L. Rev. 549 (1988) ................. 12

Sir William Blackstone, Blackstone’s Commentar-

a csesuonoososonovcces 12

Sir William Blackstone, Blackstone’s Commentar-

Ec 12

Tex. S. Con. Res. 16, 57th Leg. R.S., 1961 Tex. Gen.

EE 15

INTEREST OF AMICUS CURIAE'’

The monument being challenged in this case was

donated by the Fraternal Order of Eagles. The Interest of

Amicus Curiae, which is thus more fully developed than a

normal Amicus, is provided below.

On February 6, 1898, the Fraternal Order of Eagles

was founded by six theater owners sitting in a pile of

lumber in Moran’s shipyard in Seattle, Washington.

Competitors in the theater indusiry, they met to discuss a

musician’s strike. After deciding what to do on that issue,

they decided to resolve their differences and form an

organization-dubbed the “Seattle Order of Good Things,” a

few weeks later renamed the Fraternal Order of Eagles.

The Order asked its members to “make human life more

desirable by lessening its ills and promoting peace, pros-

perity, gladness and hope.” Members received free medical

attention (as did the individual’s family), weekly payments

in case of sickness, and a funeral benefit — all valuable

services before the widespread availability of medical,

disability, and life insurance.

The first meetings were held on the stages of various

local theaters, and after the business was settled, a keg of

beer was rolled out and all enjoyed a few hours of social

activities. Most of the first Eagle members were connected

with the theatre — actors, stagehands, directors and

playwrights. As some of these members went on tour, they

carried the story of the new order with them across the

* The parties have consented to the filing of this brief. Their letters

of consent have been filed with the Clerk of this Court. Pursuant to this

Court’s Rule 37.6, none of the counsel for the parties authored this brief

in whole or in part and no one other than amicus or its counsel contrib-

uted money or services to the preparation and submission of this brief.

United States and Canada, leading to a rapid growth in

membership across the country. The first Lodges or Aeries

sprung up in metropolitan areas such as New York and

Philadelphia where theatre and the arts had widespread

cultural appeal. The mission of the Fraternal Order of

Eagles reads, “The Fraternal Order of Eagles, an interna-

tional non-profit organization, unites fraternally in the

spirit of liberty, truth, justice, and equality, to make

human life more desirable by lessening its ills, and by

promoting peace, prosperity, gladness and hope.”

Over the years, the Eagles have fought and won many

battles, including hard fought battles for a Workman’s

Compensation Act, Mothers and Old Age pensions, Social

Security laws and “Jobs After 40.” The Eagles continue to

fight to liberalize present social benefits along with com-

bating vicious diseases plaguing mankind through their

sponsorship of the Art Ehrmann Cancer Fund, Max Baer

Heart Fund, Robert Hansen Diabetes Fund, Jimmy

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

the Lew Reed Spinal Cord Injury Fund.

The Eagles hold sacred four pens that have been the

instruments of the betterment of mankind. The first pen

was presented in 1923 by Montana Governor Joseph M.

Dixon after he signed America’s first old age pension into

law. The Eagles advocated the need for social security well

before the Great Depression and well before anyone else

perceived the danger of the government not assisting the

elderly and those in need. At the time Governor Dixon

signed, he said “you Eagles have planted this seed, if the

~ Eagles of the United States never do anything else, they

have more than justified their existence in their advocacy

of this great humanitarian movement.”

The second pen was presented to the Fraternal Order

of Eagles by President Franklin D. Roosevelt in 1935 after

he signed the Social Security Act. At the time he said, “The

pen I am presenting the order is a symbol of my approval

of the fraternity’s vision and courage, may its possession

inspire your members to dedicate their efforts and those of

the fraternity to bring a greater degree of happiness to our

people.”

The third pen was presented to the Fraternal Order of

Eagles in 1964 by President Lyndon B. Johnson after he

signed the Medicare amendment to the Social Security Act

into law. At the time he said “for your energetic and

dedicated espousal of social justice, and for the generous

support you have given to all measures designed to further

economic opportunity and the compassionate treatment of

the sick and disabled.”

The fourth pen was also presented to the Fraternal

Order of Eagles by President Lyndon B. Johnson in 1965

after he signed the federal “Jobs After 40” bill that out-

lawed upper age limits in hiring. At the time he said, “The

Eagles started this whole idea. That is why I invited the

Eagles to be at this private bill signing, and the reason I

am presenting this pen to the Fraternal Order of Eagles.”

It has been the Eagles long standing advocacy for

social justice that has attracted many great social and

political leaders to join as members of the organization.

Such members include: President Franklin D. Roosevelt,

President Harry S. Truman, President Warren G. Harding,

President John F. Kennedy, President Ronald Reagan,

President Jimmy Carter, entertainer Bob Hope, singer

Billy Ray Cyrus, movie director Cecil B. DeMille, actor Yul

Brynner, Olympic legend Jim Thorpe, Wisconsin Governor

Bob La Follette (one of the most significant leaders of

American progressivism, championing the rights of the

poor, workers, women and minorities), entertainer Danny

Thomas, actor and heavyweight boxing champion Max

Baer, heavyweight boxing champion Joe Louis, heavy-

weight boxing champion Jack Dempsey, and baseball hall

of famers Joe DiMaggio, Honus Wagner, Bob Feller and Cy

Young.

As preserved in the minutes of the 1954 Grand Aerie

Convention Proceedings, the Youth Guidance Committee

of the Fraternal Order of Eagles determined that there

existed a problem across the country concerning juvenile

delinquency and juvenile crime. The Eagles sought to

inspire the youth to put their efforts toward the common

good just as the former generations had championed social

security and social justice for the common man. The

Eagles sought to remedy this situation through a social

awareness campaign.

It was proposed that the Eagles engage in a program

to highlight the ten commandments as the foundation of

law in our culture and thus could serve as a nice short-

hand of rules to govern personal conduct that would lead

to a productive life. The Eagles donated thousands of

monuments bearing the ten commandments across the

nation to do its part to battle the ills of juvenile delin-

quency and crime. The ten commandments version used

was a compilation produced by a group of Jewish, protes-

tant and Catholic leaders. The goal of the ten command-

ments project was to acknowledge the ten commandments’

historical impact on the development of Western legal

tradition and, through reminding the public of this

historical fact, inspiring the youth to live law-abiding and

productive lives. The Eagles seek to preserve these

monuments to continue its battle to achieve social justice

in this nation through the awareness that only by serving

others above oneself can anyone achieve a full and com-

plete life.

SUMMARY OF THE ARGUMENT

The Fraternal Order of Eagles is a social justice

organization that has dedicated itself to the establishment

of social safety nets such as Social Security and Medicare,

helping to find the cure for diseases that plague mankind

and develop within the American youth a sense of selfless

service for the community. The ten commandments

monument at issue in this case is a part of an effort by the

Eagles to educate the youth about an historical root of

American law and a basic foundation of living life in

service of others above self. The context of this particular

monument is especially appealing to this purpose because

it sits in an area of the capitol grounds that feels like a

virtual museum with various other plaques and monu-

ments, some bearing religious inscriptions and imagery.

The ten commandments are part of the secular history

of our nation. They are a reflection of an historical root of

American law and indeed serve as a reminder that our law

is not a modern invention but rather a distant descendant

from an earlier time when laws based on universally

accepted standards of behavior first began.

Our constitutional jurisprudence does not require us to

erase the religious content from our historical monuments.

Such a brooding hostility is not the law. The intentional

exclusion of religion from the public square does not send

a neutral message. Instead, such intentional exclusion

7 6

sends a harmful message to the public that it is improper

for us to publicly acknowledge any parts of our history and

culture with religious content. A state should be free to

acknowledge all of its history. The Establishment Clause

was never intended to be used to censor our religious

history and culture. The Fraternal Order of Eagles simply

seeks to preserve our cultural and legal heritage for future

generations to grow in their respect for the law and for

each other.

ARGUMENT

I. INTRODUCTION

The monument in question was donated in 1961 to the

state by the Fraternal Order of the Eagles, a non-religious

civic organization founded in 1898 as “The Fraternity for

the Common Man.” The monument contains the ten

commandments as well as the Chi Rho, a symbol of Chris-

tianity, the Star of David, a symbol of Judaism, the all-

seeing eye, a secular symbol, as well as decorative symbols

of no religious significance. The monument also bears an

eagle gripping an American flag, demonstrating the

Fraternal Order of Eagles and the Order’s acknowledge-

ment of its duty to the people of this nation to promote

justice and equality. Although the monument includes

religious content, the State of Texas is not promoting

religion or a particular religion. In fact, it was not the

desire of the Fraternal Order of Eagles to promote any

particular religious thought at all. The Eagles simply

desired to reflect the historical roots of certain behavioral

standards that are recognizable and part of the foundation

of our culture to encourage the youth to lead more socially

productive lives.

Petitioner spends five pages explaining to the Court

the different versions of the ten commandments, including

making an obvious factual error. Petitioner states on page

thirteen of his brief, “[w)hat Texas has placed on its capitol

grounds is a version of the Ten Commandments accepted

by certain Protestant denominations, but rejected by other

Christians as well as Jews.” This statement ignores the

true origin of the version of the ten commandments

provided by the Fraternal Order of Eagles.

The Eagles, recognizing that various faith groups

have differing versions of the ten commandments, brought

many faith groups together to formulate a universally

acceptable version of the ten commandments.” The Eagles

felt comfortable using such a version, because the Eagles

never intended to convey a religious message, as such is

not consistent with the mission of the organization. In-

stead, the Eagles simply sought a message that would

serve as a reminder of the historical roots of our legal

system and encourage the youth to adhere to basic princi-

ples of civility, honor their elders, not be motivated by the

greed that can so often take hold of a person in a free

market economy such as ours, and lead more productive

lives.

* “Initially the Eagles rejected the notion of sponsoring the

National Youth Guidance Program (erecting ten command-

ments monuments) because it was felt that such distribu-

tion ‘might seem coercive or sectarian.’ However, after

representatives of the Jewish, Protestant, and Catholic

faiths were able to develop a version of the Ten Command-

ments which was not identified with any particular reli-

gious group, the Eagles agreed to support such a youth

guidance program.”

State of Colorado v. Freedom From Religion Foundation, Inc., 898 P.2d

1013, 1017 (Colo. 1995).

The monument does include religious content. How-

ever, there is a vast difference between government

sponsorship of religion and recognition of religion or

religious facts. We do not ban Renaissance paintings from

the National Museum of Art because they have religious

content. Neither do we ban Handel’s Messiah from being

played in our city symphony halls.

All monuments on the Texas capitol grounds are

legitimate representations of Texas or United States

history. Neutral accommodation requires acceptance of

that which is representative of state or national history,

even if it has religious content. It requires recognition of

religious content along with other ideas and expression.

The acknowledgment of religious content is not the same

as endorsement of religion. Acknowledgement is neutral.

The refusal to acknowledge religion along with other ideas

or expressions is hostility to religion and censorship.

If mere government recognition of religious content or

a particular religious perspective on secular thought is a

violation of the Establishment Clause as Van Orden

alleges, then we are faced with an imposed censorship

which treats religion and religious expression differently

from other types of ideas and expressions. If the state

totally isolates itself from any perceived connection with

religion, but recognizes all similar and competing ideas,

then the result will be hostility toward religion and state

control of ideas — a situation which the First Amendment

was designed to prevent. The Eagles seek simply to ensure

that their expression of a desire for the youth to follow a

set of moral principles and serve others for the betterment

of mankind receives the same protection as the propaga-

tion of other secular ideas and goals, even though the

monument includes religious content.

II. FACTUAL CONTEXT OF MONUMENT

The Texas Capitol Grounds are a square area of land

bordered by the following four streets: 15th, San Jacinto,

11th, and Colorado. All the land contained within the four

streets makes up the Capitol Grounds (the “grounds”). The

grounds contain seventeen (17) monuments as well as

numerous plaques, dedications, seals, etc. The grounds

contain ten (10) buildings including the Capitol Building

and the Supreme Court Building. The monument in

question is located in a small park-like subsection of the

grounds between the Supreme Court Building and the

Capitol Building. The monument is 123 feet from the

Supreme Court Building and seventy-nine and one-half

(79.5) feet from the Capitol Building. There are four (4)

other monuments in this small park-like subsection of the

grounds. These monuments are labeled “Tribute to Texas

Children,” “Texas Pioneer Women,” “Statue of Liberty

Replica,” and “Pearl Harbor Veterans” by a pamphlet

published by the State Preservation Board. The monu-

ment is 121 feet from the “Tribute to Texas Children”

monument, 131.5 feet from the “Texas Pioneer Women”

monument, 162.5 feet from the “Statue of Liberty Replica,”

and 244 feet from the “Pearl Harbor Veterans” monument.

Overlooking this area of land from atop the Capitol

Building is the “Goddess of Liberty” statue. A wide spec-

trum of groups ranging from Wicca to illuminati religious

perspectives adhere to the notion that she has qualities of

divinity. Also “acing the grounds from the Capitol is the

seal of Mexico, an eagle holding a serpent in its mouth.

This symbol, like the Goddess of Liberty and the ten

commandments, also has religious roots. The seal repre-

sents Aztec prophecy which Mexican folklore claims

compelled the natives to build Mexico City in the middle of

a lake. In viewing distance of the ten commandments

monument, a display with religious and secular roots, are

four secular monuments and two additional secular

displays with religious (though not Judeo-Christian) and

secular roots.

Within the Capitol Building, approximately 80 feet

from the monument, an array of monuments, plaques,

dedications, inscriptions, and seals can be found depicting

both the secular and religious roots of Texas history.

Among the secular displays in the rotunda are a Tribute to

African American Legislators, a confederate plaque, a War

with Mexico plaque, and a plaque commemorating those

who donated the granite for the building. The entire Texas

State Capitol has been designated a National Historic

Landmark and visitors to the Capitol are informed of this

by a large plaque in the rotunda. Among the displays with

religious roots or references is the Six Flags over Texas

display in the floor of the rotunda. This display contains

the Mexican eagle and serpent, a symbol of Aztec proph-

ecy, as well as the confederate seal containing the words

“Deo Vindice” which translate, “God will Judge.” It should

also be noted that the historic Supreme Court room in the

Capitol Building contains the following inscription on the

bench, “Sicut Patribus, Sit Deus Nobis,” which translates,

“As God was to our fathers, may He also be to us.” Texas

does not treat religious thoughts and content as subver-

sive, but, as it should, treats religious and secular

thoughts equally, recognizing the importance of both in the

history of Texas and this country.

Il. THE TEN COMMANDMENTS DISPLAY DOES

NOT VIOLATE THE ESTABLISHMENT CLAUSE

While the Fraternal Order of Eagles is a secular social

justice organization, it desires to protect the monuments it

donated across the nation because these monuments,

while they include religious content, serve the secular

purpose of the Eagles to encourage the youth to turn from

delinquency and embrace a larger mission to serve others.

It is difficult to find a suitable message to convey the

message to families across the nation that there are basic

behavioral standards that historically have formed the

root of all other laws and standards. The Eagles felt that

the ten commandments best conveyed that message from

an historical perspective. Recognition of a religious and

historical root of American law does not violate the Estab-

lishment Clause.

A. The Ten Commandments are Part of Secu-

lar History

On at least four occasions, members of the Supreme

Court of the United States have expressly recognized the

secular significance of the ten commandments. County of

Allegheny v. American Civil Liberties Union, 492 U.S. 573,

652-53 (1989) (Stevens, J., with whom Brennan, J., and

Marshall, J., concurring in part, dissenting in part) (carv-

ing of Moses with ten commandments on wall of Supreme

Court’s courtroom alongside famous secular lawgivers is a

fitting message for a courtroom); Lynch v. Donnelly, 465

U.S.- 668, 677 (1984) (Burger, C. J., noting with approval

the presence of depiction of Moses and ten commandments

on Supreme Court’s wall); McGowan v. Maryland, 366 U.S.

420 (1961) (Frankfurter, J., “Innumerable civil regulations

enforce conduct which harmonizes with religious concerns.

State prohibition of murder, theft, and adultery reinforce

commands of the decalogue.”); Stone v. Graham, 449 US. 39,

45 (1980) (Rehnquist, J. dissenting) (the ten command-

ments, undeniably, “have had a significant impact on the

development of secular legal codes of the Western World.”)

This secular significance of the ten commandments,

and their role in the foundation of our legal system is

undeniable. Sir William Blackstone, the preeminent legal

educator of the Framers of the Constitution, wrote that all

human laws depend upon two foundations: the law of

nature and the law of revelation; the doctrines of which

“are to be found only in the holy scriptures.” Blackstone’s

Commentaries, Book I, Section 2. Blackstone, in turn,

identifies the English King Alfred as the founder of Eng-

lish common law. Jd., Book I, Section 3. The laws of King

Alfred start with the ten commandments. Harold J.

Berman, Individualistic and Communitarian Theories of

Justice: An Historical Approach, 21 U. Cal. Davis L. Rev.

549-575 (1988). Whether one agrees with this philosophy

or not, it is an undeniable part of our history and the

development of our system of law.

The ten commandments are thus far from being a

mere religious text sacred to certain religious groups.

Their place in the history of our legal system renders them

a powerful symbol of the rule of law. Van Orden’s discom-

fort with the undeniable facts of history are not a proper

basis for censoring parts of our history.

B. Ten Commandment displays, in the proper

context as present in this case, are consti-

tutional.

In Stone v. Graham, while striking down a Kentucky

statute mandating the display of the ten commandments

in every public school classroom, the Supreme Court

indicated that the constitutional infirmaries of the Ken-

tucky practice would disappear if “the ten commandments

are integrated into the school curriculum, where the Bible

may constitutionally be used in an apprepriate study of

history, civilization, ethics, comparative religion, or the

like.” 449 U.S. at 42. Thus, the Gourt approved the use of

the ten commandments, plainly religious provisions

included, as a part of a course of study in schools. Jd.

Numerous courts addressing the constitutionality of

government displays of the ten commandments have

upheld the displays. For example, the United States Court

of Appeals for the Tenth Circuit, in Anderson v. Salt Lake

City Corporation, 475 F.2d 29 (10th Cir. 1973), cert. denied,

414 U.S. 879 (1973), rejected an Establishment Clause

challenge to an illuminated, permanent display of a

monument depicting the ten commandments on the

grounds of a courthouse. The court held that the monu-

ment was merely a “depiction of a historically important

monument with both secular and sectarian effects,”

presented primarily for its historical significance. Jd. at

34. The court concluded that it would be unreasonable “to

require removal of a passive monument, involving no

compulsion, because its accepted precepts, as a foundation

for law, reflect the religious nature of an ancient era.” Id.

at 34.

Similarly, in State v. Freedom from Religion Founda-

tion, 898 P.2d 1013 (Colo. 1995), cert. denied, 516 U.S. 1111

(1996), the Colorado Supreme Court upheld the display of

a ten commandments monument on the grounds of the

State Capitol. The monument in the Colorado case is

situated in an outdoor park in Denver, among a number of

other monuments and tributes commemorating various

historical events, characters, and concepts. Jd. at 1015-16.

Concluding that the display was appropriately included in

such a forum, the court reiterated the secular significance

of the ten commandments:

All the experts who testified at trial agreed that,

at least to the extent that the Commandments

established ethical or moral principles, they were

expressions of universal standards of behavior

common to all western societies. It was agreed

that these moral standards, as influenced by the

Judeo-Christian tradition, have played a large

role in the development of the common law and

have formed a part of the moral background for

the adoption of the national constitution.

Id. at 1024. The court held that the display “fits within the

mélange of historical commemorative accounts found in

Lincoln Park.” Id. Moreover, “the display of monuments in

Lincoln Park teaches a history of rich cultural diversity —

due to our past it would be inaccurate to ignore a history

that includes religion.” Jd. at 1025.

In addition, Suhre v. Haywood Cty., 55 F. Supp.2d 384

(W.D.N.C. 1999) upheld a ten commandments display. In

Suhre, the passive display of the ten commandments in a

county courtroom next to a substantially larger sculpture

of Lady Justice did not violate the Establishment Clause

because the display as a whole did not convey a religious

message. Suhre, 55 F. Supp.2d at 399.

C. The monument does not endorse religion

The Supreme Court has sent conflicting signals about

whether the well-known Lemon test should be applied in

cases of this nature. American Civil Liberties Union of

Ohio v. Capitol Square Review and Advisory Board, 243

F.3d 289, 305-6 (6th Cir. 2001) (en banc). See Lemon v.

Kurtzman, 403 U.S. 602 (1971). Assuming Lemon remains

the appropriate test, it is clear that the State Capitol’s

collection of monuments, including the display of the ten

commandments, pass the constitutional requirements of

the Establishment Clause.

Under Lemon, the State’s action must have a secular

purpose. Lemon, 403 U.S. at 612-13. The Supreme Court,

in determining whether a secular purpose exists, has

simply required that the display not be “motivated wholly

by religious considerations.” Lynch v. Donnelly, 465 U.S.

668, 680 (1984). The fact that a monument conveys some

religious meaning does not cast doubt on the existence of

valid secular purposes for its display. City of Elkhart v.

Books, 532 U.S. 1058, 1063 (2001) (Rehnquist, J., dissent-

ing)

As noted by the District Court in this case, “the best

evidence of the State’s purpose is found in Senate Concur-

rent Resolution Number 16, the legislative act which

permitted the Fraternal Order of Eagles to place the ten

commandments on the Capitol grounds.” (R. 329) Memo-

randum Opinion and Order 10/02/02, p. 9. The resolution

plainly states that the monolith was “presented by the

Eagles to promote youth morality and to help stop the

alarming increase in delinquency.” Tex. S. Con. Res. 16,

57th Leg., R.S., 1961 Tex. Gen. Laws 1195; Jt. Ex. 1. Van

Orden stipulated that the “promotion of morality is a valid

secular purpose.” Pitf’s Ex. 67, No. 4. Given the stipula-

tion and the plain intent of the legislature as expressed in

the resolution, the inquiry as to whether this prong of the

Lemon test is met need go no further.

“Unless it seems to be a sham, ... the government’s

assertion of a legitimate secular purpose is entitled to

deference.” Chaudhuri v. State of Tennessee, 130 F.3d 232,

236 (6th Cir. 1997), cert. denied, 523 U.S. 1024 (1998).

Both the legislature’s stated purpose and the stated

purpose of the Fraternal Order of Eagles regarding this

project are clear that the monument was erected for the

secular purpose of encouraging the youth to turn from

delinquency and to promote youth morality.

The second prong of the Lemon test is whether the

primary effect of the government’s action either advances

or inhibits religion. Lemon, 403 U.S. at 612-13. The effect

prong has been further refined by Justice O’Connor’s

“endorsement test” as illuminated in the Court’s opinion in

Capitol Square Review and Advisory Board v. Pinette, 515

U.S. 753, 778-780 (1995) (O’Connor, J., concurring). Ac-

cording to Justice O’Connor, endorsement vel non is to be

judged by a “reasonable observer” standard. This reason-

able observer is “deemed aware of the history and context

of the community and forum in which the religious display

appears,” Jd. at 780. While “there is always someone who,

with a particular quantum of knowledge, reasonably might

perceive a particular action as an endorsement of religion,”

that “someone” does not personify the community ideal

with which we are concerned in applying the endorsement

test. Id.

Applying this prong of the Lemon-plus-endorsement

test, it is clear that no reasonable observer of the Capitol’s

collection of monuments would perceive their primary

effect as being one of endorsing religion in general or one

religion in particular. Rather, a reasonable observer would

see a collection of historical monuments tied together by

a common theme — Texas history and the people of Texas.

This monument’s size and location affords no more

importance or prominence than other monuments. To the

contrary, the District Court noted that “The ten com-

mandments monument is located ... well off the usual

beaten path for tourists. Indeed, but for the publicity

generated by the present litigation, most visitors to the

State Capitol and most residents of the State of Texas

would have been unaware of the ten commandments

monument.” (R. 333) Memorandum Opinion and Order

10/02/02, p. 13. The fact that one of the many monuments

on the Capitol grounds has religious connections, origins

or connotations in addition to their secular significance

would not lead a reasonable observer to conclude that the

government is endorsing religion.

The effect prong requires a “reasonable” observer, not

a hyper-sensitive objector who is offended by the mere

presence of the ten commandments anywhere on the

capitol grounds. By the standards of the latter, all gov-

ernment displays of objects with any religious connections

are unconstitutional. Would Van Orden have us sand the

words off the bench of the original Texas Supreme Court,

take the Goddess of Liberty off the Capitol Building,

rewrite the Confederate motto and redraw the Mexican

flag? Should “In God We Trust” be removed from our

money, or “God” be erased from our Declaration of Inde-

pendence? These are all government displays of objects

with religious content that would, by Van Orden’s stan-

dards, be unconstitutional.

Van Orden attacks the monument solely because it

contains religious content. Such a view fails to focus on the

context in which the monument is placed, which is the key

inquiry in determining the question of endorsement. See

County of Allegheny v. ACLU, 492 U.S. 573, 597 (1989). As

the District Court properly noted, “Viewed in the proper

context, and in light of its history this passive monument

cannot be said to advance, endorse, or promote religion to

a degree that would require the drastic remedy of ordering

the Defendants to remove it from the Capitol grounds.”

(R. 333-34) Memorandum Opinion and Order 10/02/02, p.

13-14. The Supreme Court of Colorado considered this

issue in State of Colorado v. Freedom From Religion

Foundation, Inc., 898 P.2d 1013 (Colo. 1995), and upheld

the display the of a ten commandments monument on the

grounds of the State Capitol. One monument among many,

the ten commandments monument does not violate the

Establishment Clause.’ Accordingly, the opinion of the

Fifth Circuit Court of Appeals and the District Court

dismissing Van Orden’s claims should be affirmed.

IV. GOVERNMENT SHOULD BE NEUTRAL TO-

WARD RELIGION, NOT CENSOR RELIGION

In the difficult area of church/state relations, the

Supreme Court has reached for the goal of neutrality

toward religion and among religions. Neutrality with

regard to religion was first discussed in School District of

Abington Township, Pennsylvania v. Schempp, 374 U.S.

203 (1963). Neutrality meant that the state could neither

advance nor inhibit religion. Jd. at 226.

Often neutrality toward religion is like standing on a

sandbar and waiting for high tide. Any possible neutral

ground slips away and someone is offended because their

perceived idea of neutrality is violated. Mankind cannot be

separated from religion. “The history of man is inseparable

from the history of religion.” Engel v. Vitale, 370 U.S. 421,

434 (1962). “We are a religious people whose institutions

presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S.

* The parties agree that the third prong of the Lemon test “entan-

glement” is not in issue. (R. 329) Memorandum Opinion and Order

10/02/02, p. 9.

306, 313 (1952). Just as there is no way to isolate the

religious part of a person from the rest of the person, there

is no sieve into which ideas can be placed to sift the

religious aspects of ideas from the secular.

In an attempt to grasp the meaning of the Establish-

ment Clause and the government’s role with respect to

religion, the Supreme Court has attempted to discern the

intentions of the authors of the First Amendment.

“(H]istorical evidence sheds light not only on what the

draftsmen intended the Establishment Clause to mean,

but also on how they thought that Clause applied ... ”

Marsh v. Chambers, 463 U.S. 783, 790 (1983).

Though people can draw different views from history,

it is rather obvious that most of the Founding Fathers

believed the United States to be a nation founded on

religious expression. If analyzed by today’s standards,

many government actions early in our nation’s history did

in fact promote or endorse religion in general. See, e.g.,

County of Allegheny, 492 U.S. at 670-673 (1989) (Kennedy,

J., concurring in part and dissenting in part). Surely these

men who drafted and adopted the First Amendment and

who treasured the rights protected thereby as much as we

do today would not take actions to violate the very rights

that they had worked so hard to define and protect.

Though neutrality is often difficult to ascertain in the

church/state context, the Supreme Court has established a

middle ground, in the area of equal access. The concept of

equal access prohibits discrimination against religious

groups if a public facility is available for use by different

groups or organizations. If an open forum is created by a

state-operated facility, then religious groups must be

allowed to use the facility the same as other groups. The

Supreme Court has repeatedly held that the use of public

school facilities by religious groups does not create gov-

ernment support of religion if such use is on the same

terms as other groups; rather, the neutral position is

accommodation of religious groups along with other

groups. Lamb’s Chapel v. Center Moriches Union Free

School District, 508 U.S. 384 (1993); Board of Education of

Westside Com. Schools v. Mergens, 496 U.S. 226 (1990);

Widmar v. Vincent, 454 U.S. 263 (1981). Such a policy does

not advance religion; instead it serves a neutral purpose.

Widmar, 454 U.S. at 267. The exclusion of religious groups

is religious content-based discrimination and unconstitu-

tional. Jd. at 276.

Similarly, the monuments of the Capitol grounds are

an attempt by a state to express its culture and heritage.

Neutrality requires that religious ideas or symbols be

permitted along with historical, economic, commercial, or

philosophical references. The exclusion of only religious

symbols amounts to content-based discrimination and

hostility to religious citizens and heritage.

A society functions best when there is free exchange of

ideas. The First 4“ mendment makes the free exchange of

ideas possible. But today there is a philosophy that certain

ideas are not entitled to public debate or expressions

because they are religious. This philosophy has nothing to-

do with the Establishment Clause, but its purpose is the

censorship of religious ideas which do not meet the ap-

proval of those adhering to the philosophy. As Justice

Kennedy stated in County of Allegheny, 492 U.S. at 664

(Kennedy, J., concurring in part and dissenting in part),

“Judicial invalidation of government’s attempt to recognize

the religious underpinnings of the holiday would signal

not a neutrality but a pervasive intent to insulate govern-

ment from all things religious.”

The Establishment Clause was enacted to promote the

good, religious freedom, and to prohibit the bad, the state

attempt to control the minds of its citizens through regula-

tion of religious beliefs and practices. The systematic

weeding out of religious ideas and expressions from public

life is the very opposite of the purpose of the Establish-

ment Clause. The Establishment Clause was designed to

protect the free exercise of religion, not remove it from the

public realm.

Nor does the Constitution require complete sepa-

ration of church and state; it affirmatively man-

dates accommodation, not merely tolerance, of all

religions, and forbids hostility toward any. Any-

thing less would require the ‘callous indifference’

we have said was never intended by the Estab-

lishment Clause. Indeed, we have observed, such

hostility would bring us into ‘war with our

national tradition as embodied in the First

Amendment’s guarantee of the free exercise of re-

ligion.’

Lynch, 465 U.S. at 673 (internal citations omitted).

Mandatory accommodation permits a monument with

religious content. The forced removal of the monument

would declare that religious expression is a second class

form of speech, not entitled to public recognition or consti-

tutional protection. Forced removal would be an example

of the “war with our national tradition” and the tradition

and heritage of the State of Texas that the Court con-

demned.

Four decades ago, the State of Texas chose to ac-

knowledge the ten commandments’ role in our legal

heritage along with the economic, industrial, and social

aspects of our heritage. Now, one plaintiff seeks to impose

his will on the entire state by forbidding the residents of

Texas to recognize a portion of their heritage because of its

religious content. The Establishment Clause is not a

weapon to eradicate from the public realm any ideas that

one disagrees with by labeling them “religious.” It is not

an instrument to be used to rewrite history.

These men knew that the First Amendment,

which tried to put an end to governmental con-

trol of religion and of prayer, was not written to

destroy either. They knew rather that it was

written to quiet well-justified fears which nearly

all of them felt arising out of an awareness that

governments of the past had shackled men’s

tongues to make them speak only the religious

thoughts that government wanted to speak...

Engel, 370 U.S. at 435.

Van Orden is as free as any resident of Texas to

worship or not worship as he pleases. He may ignore the

monument if he wishes. It does not exercise any control

over him. There are no shackles on his religious expres-

sion.

But a shackle will appear if this court decides to

prohibit a state from recognizing its religious roots. A

society is not free when the state promotes secular ideas

and expressions, but squelches religious ideas and expres-

sions. A nation is not free when the state or the court

decides to dictate which ideas and symbols must be cen-

sored in reflecting history. As Justice O’Connor wrote for

the plurality in Mergens:

[t]he Establishment Clause does not license gov-

ernment to treat religion and those who teach or

practice it, simply by virtue of their status as

such, as subversive of American ideals and there-

fore subject to unique disabilities.

496 U.S. at 248 (internal quotation marks and citation

omitted).

The Fraternal Order of Eagles never intended to

spark a legal battle in 1961, much less one over religion.

The Eagles merely sought to encourage young people by

pointing to the historical basis for our rule of law and

encouraging them to be law-abiding citizens and to know

that only by serving others above oneself can anyone

achieve a full and complete life. This is not a violation of

the Constitution. It is a generous act of good citizenship.

The Eagles beseech this Court to uphold the Court of

Appeals below and not issue a ruling which would ad-

versely affect thousands of monuments donated by the

Eagles in cities and communities nationwide.

CONCLUSION

For the foregoing reasons, the Fraternal Order of

Eagles respectfully requests the Court to affirm the

opinion of the Court of Appeals and the order of the

District Court dismissing Van Orden’s claims in their

entirety.