Amicus Curiae Brief — Van Orden v. Perry

No. 03-1500

Supreme Court, U.S.

FILED

IN THE C13

Supreme Court of the United 2004

OFFICE OF THE CLERK

THOMAS VAN ORDEN,

Petitioner,

V.

Rick PERRY, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF TEXAS AND

CHAIRMAN, STATE PRESERVATION BOARD, E£T AL.,

Respondents.

On Writ oF CERTIORARI TO THE UNITED STATES

CourRT OF APPEALS FOR THE FirtH CIRCUIT

BrieF For THe Hinpu AMERICAN FOUNDATION AND OTHERS,

REPRESENTING THE INTERESTS OF Hinpus, BUDDHISTS

AnpD JAINS, AS Amici CuriAE In Support OF REVERSAL

SuHAG A. SHUKLA Henry C. DINGER

Legal Counsel Counsel of Record

NIKHIL N. JosuHi Goopwin | PROCTER LLP

HINDU AMERICAN FOUNDATION Exchange Place

15 Arbor Club Drive Boston, MA 02109

Suite 103 (617) 570-1000

Ponte Vedra Beach, FL 32082 JEFFREY A. SIMES

KerrH A. ZULLOW

Dary_ L. WIESEN

ASEEM V. MEHTA

JESSICA JAMIESON

Jessica S. PARISE

GoopwiIn | PROCTER LLP

599 Lexington Avenue

New York, NY 10022

(212) 813-8800

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ............

INTEREST OF THE AMICI CURIAE ...........

SUMMARY OF THE ARGUMENT .............

INTRODUCTION AND BACKGROUND .......

I.

~- The Ten Commandments Constitute And

Symbolize Fundamental Religious Precepts

Concerning The Relationship Between Human

Beings And The Judeo-Christian God — Precepts

-_ To Which Millions Of Americans Do Not

BORE ccccccdvcesdcetalssateeeueasaen

Background On The Non-Judeo-Christian

Religions And How Their Theologies Conflict

With The Religious Precepts Set Forth On The

Ten Commandments Monument ............

The Primary Effect Of The Ten Commandments

Monument On Members Of The Non-Judeo-

Christian Religions Is To Confirm That Texas

Endorses The Particular Majority Religious View

Reflected In The Monument ................

A. The Monument Runs Afoul Of The “Effect”

Prong Of The Court’s Lemon Test, Which The

Lower Courts Misapplied By Focusing Solely

On The Effect Of The Monument On Those

Who Agreed With Its Teachings And

Overt Religious Symbolism .............

13

14

15

ti

Contents

B. The Effect Of The Ten Commandments

Monument On Followers Of The Non-Judeo-

Christian Religions Is To Signal An

Endorsement Of Particular Religious Views

C. The Placement And Religious Content Of The

Ten Commandments Monument Informs Non-

Judeo-Christians That They Are Political

Beebe dee sestoueeenveses

II. The Ten Commandments Monument Violated The

Establishment Clause Forty Years Ago And

Continues To Do So Today .................

A. The Passage Of Time Does Not Legitimize An

Otherwise Improper Government Activity ...

B. The History Of Amici In Texas (And

The United States) Explains Why Followers

Of The Non-Judeo-Christian Religions Had

Not Previously Openly Complained About The

Ten Commandments Monument ..........

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Page

18

21

23

25

28

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TABLE OF CITED AUTHORITIES

CASES

Capitol Square Review & Advisory Bd. v. Pinette,

6 enaedeeeneenseeenske<

County of Allegheny v. Am. Civil Liberties Union,

492 U.S. 573 (1989) .. 0... cece ee cece eeee 16,

Edwards v. Aguillard,

Ge es SUM EREED ccccccccccececcescecces

Good News Club v. Milford Cent. Sch.,

ED 6 wg bub 6 RE 06660 600 8ce vee

Lee v. Weisman,

te 6a i Cede veseeeme-ns

Lemon v. Kurtzman,

ED een wéeevebeeees obese

Lynch v. Donnelly,

ED eevee evnsieccanevecewe

Marsh v. Chambers,

rE en decd. coc buebe snl ones

Reynolds v. United States,

ET bceie bb cc ceubbunsdsences

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

DPE, cinceeecesassenccecetes

Sch. Dist. of Abington Township v. Schempp,

I , . 666 66¢ed0andndekseaess

Page

17,19

iv

Cited Authorities

Page

Stone v. Graham,

od eusaes 19

Van Orden v. Perry,

351 F.3d 173 (5th Cir. 2003) .... 15, 16, 20, 21, 22, 24

Van Orden v. Perry,

2002 U.S. Dist. LEXIS 26709

(WD. Tom. Gat. 3, SRGE) oc ccccscccsess 4, 16, 22, 24

Zelman v. Simmons-Harris,

SIG UE. GIP GED oc cccccccccccccccsesess 5

LEGISLATIVE MATERIALS

Immigration and Nationality Act of 1952,

ch. 477, 66 Stat. 163 (1952) .......cccceceee 26

Immigration Act of 1917,

ch. 2D, 3D Beat. S76 CAGUT) .. cv ccccvccccccese 26

BOOKS, ARTICLES & OTHERAUTHORITIES

Se ee Ge . . conesbeunedéccenwedeveus 7, 8,27

Bochasanwasi Shri Akshar Purushottam

Swaminarayan Sanstha for Kids ............. 9

DGUNSUOMONY 2c cc cccccncccccscesesceccoeses 6

Dundas, Paul,

The Jains (John Hinnells ed., 2d ed. 2002) ..... 13

"=

Vv

Cited Authorities

Kapadia, Hiralal Rasikdas,

A History of The Canonical Literature

of the Jainas

(Jitendra B. Shah ed., Shree Shwetambar

Murtipujak Jaina Boarding

(Ahmedabad), Series Vol. 17,2000) .......... 13

Kipling, Rudyard,

Mandalay, in Barrack-Room Ballads (1892) ... 4

International Religious Foundation,

World Scripture: A Comparative Anthology of

Sacred Texts

(Andrew Wilson ed., 1991) ................. 13, 25

Lopez, Jr., Donald S.

The Story of Buddhism (2001) ............... 12

Melton, J. Gordon,

Encyclopedia of American Religions

(Jolen Marya Gedridge ed., 7th ed. 2005) ....7, 12, 26

Schumann, H. Wolfgang,

Buddhism, An Outline of its Teachings and

Schools

(George Fenerstein trans., 1973) ............. 11,18

Seager, Richard H..,

Buddhism in America (1999) ............005. 11

vi

Cited Authorities

Page

Subramuniyaswami, Satguru Sivaya,

Dancing With Siva: Hinduism'’s Contemporary

Catechism (Sth ed. 1999) .......... cece eee 8,18

The Brhadaranyaka Upanishad

(Sankaracarya cmt., Swami Madhavananda trans.,

SUD ccGcdpaunswnbeencsossdedacececuases 10

The Encyclopedia of Religion

(Mircea Eliade ed., 1987) ...........0ceeeees 11

The Harvard Pluralism Project:

World Religions in America at Harvard

DEE napetaddandcésdesesas'es 8, 11, 12, 13, 27

The Holy Geeta

(Swami Chinmayananda cmt., trans.,n.d.) ..... 9,10

The Oxford Dictionary of World Religions,

(John Bowker ed., 1997) .......... cece eeeees 7,13

The Staff of the Nanzan Institute,

Buddhist Spirituality: Indian, Southeast Asian,

Tibetan and Early Chinese

(Takeuchi Yoshinori et al. eds., 1994) ......... 11

The World Almanac and Book of Facts 2005

(William A. McGeveran, Jr. et al. eds., 2005) .. 10,11, 12

Thurman, Robert A.F.,

Essential Tibetan Buddhism (1995) ........... 11

vii

Cited Authorities

Tweed, Thomas A. & Prothero, Stephen

Asian Religions in America: A Documentary

SEE H6cd cbdsuseveveeedekcedcoude 27

Wakin, Daniel J.,

Rabbis’ Rules and Indian Wigs Stir Crisis in

Orthodox Brooklyn,

N.Y. Times, May 14, 2004 .................. 10

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INTEREST OF THE AMICI CURIAE'

The issue before this Court has particular significance for

individuals and groups whose faiths do not embrace the

covenantal relationship between God and human beings

established by the Ten Commandments as depicted on the

monument on the grounds of the Texas Capitol.? The Amici

Curiae represented herein submit this brief to offer the

perspective of adherents to several non-Judeo-Christian faiths,

and to explain why, from that perspective, the Ten

Commandments Monument on the grounds of the Texas Capitol

has the effect of expressing an inherent government preference

for Judeo-Christian religions over non-Judeo-Christian religions.

Amici include non-profit organizations and worship

communities in Hindu,’ Jain,* Buddhist’ and other non-Judeo-

Christian traditions® (collectively, the “Non-Judeo-Christian

Religions”). Collectively, they reflect the religious sentiments

of millions of Americans, including some of the fastest growing

religious groups in the United States.

1. Consent from Respondent for the filing of this brief is being

filed contemporaneously herewith. Consent from Petitioner is already

on file with the Court. Pursuant to Supreme Court Rule 37.6, Amici

state that no part of this brief was authored by counsel for any party and

further state that no person, other than Amici, their members and their

counsel, made a monetary contribution to the preparation or submission

of this brief.

2. Hereinafter referred to as the “Ten Commendments Monument”

or the “Monument.”

3. The following Amici are devoted to Hinduism: The Hindu

American Foundation; Arsha Vidya Pitham; Arya Samaj of Michigan;

The Hindu In ional Council Against Defamation; Hindu University

of America, Inc.; Navya Shastra; and Saiva Siddhanta Church.

4. Amicus, The Federation of Jain Associations in North America,

is devoted to Jainism.

5. Amicus, Dr. Robert A.F. Thurman, is a world-renowned Buddhist

scholar and Professor of Indo-Tibetan Studies at Columbia University.

6. Amicus, The Interfaith Freedom Foundation, represents Muslims,

Sikhs, Hindus, Buddhists, Jews and other religious minorities.

2

Amici strive to promote the teachings of their respective

faiths and to represent their religions in dealings with others.

A listing of, and further information about, the Amici is provided

in the Appendix. Each Amicus is well situated to assist the Court

in understanding the viewpoint of non-Judeo-Christians. Each

represents people whose theologies differ in profound respects

from one or more of the Commandments and with the concept

of “law” as divine injunction that the Decalogue reflects.

Because their religious traditions are not Judeo-Christian, Amici

provide a unique perspective — albeit one shared by millions

of Americans — on the effect of the Ten Commandments

monument on non-Judeo-Christians, and why it should be found

to violate the Establishment Clause under this Court’s First

Amendment jurisprudence.

SUMMARY OF THE ARGUMENT

The maintenance of the Ten Commandments Monument

on the grounds of the Texas State Capitol violates the

Establishment Clause because the Monument is inherently

religious, serves no historic purpose, and does not lose its

religious character through juxtaposition with secular images.

It depicts the Ten Commandments, a cornerstone of Judeo-

Christian theology, in the traditional shape of the “Biblical

Stones.” Non-Judeo-Christians, including Amici, who do not

adhere to the religious views that the Ten Commandments either

state or symbolize cannot fail to perceive the placement of such

a monument on the grounds of the Texas Capitol as an

endorsement of Judeo-Christian beliefs over their own. The

maintenance of the Monument therefore has the primary effect

of advancing the Judeo-Christian beliefs to which a majority of

Texans subscribe.

In reaching a contrary conclusion, the lower courts

committed two principal errors. First, they concluded that the

Ten Commandments Monument was “non-sectarian” simply

because it favored no Judeo-Christian sect or denomination over

any other. The courts below completely ignored the effect of

the Ten Commandments Monument on non-Judeo-Christians,

3

whose beliefs regarding the nature of God and the relationship

between man and God differ greatly from those enshrined in

the Monument and for whom the Monument is clearly and

unavoidably “sectarian.” By ignoring the effect of the Monument

on non-Judeo-Christians, they disregarded the requirements of

this Court’s Establishment Clause jurisprudence.

Second, the lower courts relied heavily on the forty years

the Monument stood without challenge on the grounds of the

Texas Capitol. The Establishment Clause is a bedrock

constitutional limitation on the power of government and a

violation of that limitation should not be countenanced simply

because no one has complained for over forty years. Many of

this Court’s Establishment Clause decisions struck down state-

sponsored religious practices — mandatory school prayer, for

example — that had been observed far longer than forty years.

Moreover, the inference drawn by the lower courts that the

absence of complaint evidences the inoffensiveness of the

Monument overlooks the historically tiny population of non-

Judeo-Christians in Texas — a population that has reached

significant numbers only in recent years. With the recent increase

of religious diversity, in both Texas and the nation as a whole,

comes a host of Establishment Clause issues that would never

before have come to the fore. The Fifth Circuit’s reliance on the

historical absence of challenge during a period of much greater

religious homogeneity effectively allowed majoritarianism to

trump Establishment Clause requirements.

Amici respectfully submit that the lower courts reached the

wrong conclusion here in part because they failed to properly

consider the effect of the Ten Commandments Monument on

those who do not adhere to Judeo-Christian religions. Amici

urge this Court to rectify that mistake.

INTRODUCTION AND BACKGROUND

The District Court began its opinion with an 1892 quotation

from Rudyard Kipling: “Ship me somewhere east of Suez,

where the best is like the worst. Where there a’n’t no

4

Ten Commandments, an’ a man can raise a thirst.” The District

Court failed to recognize that the world is smaller now, and

there are many people in the Western District of Texas — and

millions in the United States — for whom “there a’n’t no Ten

Commandments.” The District Court also failed to recognize

that allowing the Ten Commandments Monument to stand on

the Texas Capitol grounds affects those people in ways that the

majority, for whom the Ten Commandments are powerful

(or at least inoffensive) symbols of religious faith, will never

experience.

The District Court and the Fifth Circuit should have

considered, under longstanding Establishment Clause

jurisprudence, that many of these people would perceive the

Ten Commandments Monument as endorsing a privileged or

preferred status for Judeo-Christian religions over other

religions, particularly in a State such as Texas, where a large

majority of the population practice the Christian or Jewish faiths.

The lower courts also should have considered that the Monument

would convey to such religious minorities that, despite the

promise of equal status under the laws of the United States and

the State of Texas, they remain in fundamental ways political

outsiders. Amici respectfully submit that the failure of the District

Court and the Fifth Circuit to consider any perspective other

than that of persons steeped in the tradition of the Ten

Commandments was error, and urge this court not to make the

same mistake.

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

26709, at *1 (W.D. Tex. Oct. 2, 2002) (quoting Rudyard Kipling,

Mandalay, in Barrack-Room Ballads (1892)) [hereinafter “District Court

Opinion”).

5

The Ten Commandments Constitute And Symbolize

Fundamental Religious Precepts Concerning The

Relationship Between Human Beings And The

Judeo-Christian God — Precepts To Which Millions Of

Americans Do Not Ascribe

Amici comprise organizations that represent adherents to

major world religions: Hindus, Buddhists and Jains.* Each of

these Non-Judeo-Christian Religions has the utmost respect for

Judaism and Christianity and their ethical teachings. But these

Non-Judeo-Christian Religions do not subscribe to traditional

Judeo-Christian beliefs governing the nature of God and the

relationship among human beings and God. A central symbol

in the Judeo-Christian world for that relationship is the Ten

Commandments. The display of this fundamental symbol of

Judeo-Christian beliefs by the State of Texas in the form of a

monument on the grounds of the Texas Capitol speaks to Amici

and their fellow believers differently than it does to Christians

and Jews for whom the symbolism of the Decalogue is both

familiar and true.

To members of non-Judeo-Christian religions, the Ten

Commandments do not merely recite non-controversial ethical

maxims; several Commandments (e.g., the first, second and

third) address the forms and objects of religious worship.’

8. Zelman v. Simmons-Harris, 536 U.S. 639, 723 (2002) (Breyer,

J., dissenting) (major religions include, among others, Hinduism and

Buddhism).

9. The relevant text of the Ten Commandments Monument at issue

follows, with bracketed numbers added for ease of reference:

[1] 1 AM the LORD thy God. Thou shalt have no other gods

before-me. Thou shalt not make to thyself any graven images.

[2] Thou shalt not take the Name of the Lord thy God in vain.

[3] Remember the Sabbath day, to keep it holy. [4] Honor thy

father and thy mother that thy days may be long upon the

land which the Lord thy God giveth thee. [5] Thou shalt not

kill. [6] Thou shalt not commit adultery. [7] Thou shalt not

steal. [8] Thou shalt not bear false witness against thy

(Cont'd)

6

Moreover, the Decalogue symbolizes a theology that is

fundamentally at odds with the theology of the Non-Judeo-

Christian Religions. The manner in which the Decalogue was

provided to human beings, as described in the Bible,'® reflects a

particular view of the relationship between the divine and human

beings. Law, under this view, is not the result of rational

deliberation by human beings in furtherance of the public good,

but rather the product of direct, divine command. The substance

of the Ten Commandments, far from being universal, is expressly

predicated on the existence of one very specific god, the Judeo-

Christian God, and no other: “I AM the LORD thy God. Thou

shalt have no other gods before me.” The Ten Commandments

symbolize a particular religious perspective, that of Judeo-

Christians and not that of Amici or their co-religionists.

The fundamental precepts of the Non-Judeo-Christian

Religions directly conflict with the Ten Commandments

Monument and what it symbolizes. To Amici, placement of the

six-foot-high, three-foot-wide Ten Commandments Monument

at the center of political and legal power in the State of Texas

— its Capitol — signifies state endorsement of and preference

for Judeo-Christian religions followed by a majority of Texans

over non-Judeo-Christian religions. Thus, the Ten

Commandments Monument breached the “wall of separation

between church and State” — precisely what the Establishment

Clause was intended to protect against."

(Cont'd)

neighbor. [9] Thou shalt not covet thy neighbor’s house. [10]

Thou shalt not covet thy neighbor’s wife nor his manservant,

nor his maid servant, nor his cattle, nor anything that is thy

neighbors.

See Appendix C to the petition for Certiorari (photograph of the

Monument).

10. The story of how human beings received the Covenant from

God appears in Exodus, 19:1-34:35, and Deuteronomy, 5:1-33 &

9:7-10:11.

11. Reynolds v. United States, 98 U.S. 145, 164 (1879) (quoting

(Cont’d)

7

Background On The Non-Judeo-Christian Religions

And How Their Theologies Conflict With The Religious

Precepts Set Forth On The Ten Commandments

Monument?

The Non-Judeo-Christian Religions represented by Amici

include some of the oldest and most widely practiced religions

in the world. More than one billion people worldwide adhere to

these religions. Millions of people in the United States practice

these religions, which are among the fastest growing in the

country.

Followers of the Non-Judeo-Christian Religions did not begin

to arrive in this country in appreciable numbers until about 1975.

They came to the United States, like many generations of

better lives for themselves and their families. Recognizing their

religious minority status, they nevertheless expected to find a nation

in which the Constitution guaranteed that Government would not

favor one religion over another. In the eyes of the Non-Judeo-

Christian Religions, the Ten Commandments Monument is

; with this Constitutional

1. Hinduism. Hinduism dates as far back as 5000 B.C.E."

Worldwide, there are over 800 million Hindus."* There are an

estimated 766,000 to 1,285,000 Hindus in the United States, '*

(Cont'd)

with approval Thomas Jefferson, Letter to the Danbury Baptist

Association (1802), reprinted in Thomas Jefferson: Writings at 510

(Merrill D. Peterson ed., 1984)).

12. A complete description of Hinduism, Buddhism and Jainism,

and the many schools of thought of each of these religions that have

emerged over their long histories, is beyond the scope of this brief.

13. J. Gordon Melton, Encyclopedia of American Religions 195

(Jolen Marya Gedridge ed., 7th ed. 2003).

14. The Oxford Dictionary of World Religions 430 (John Bowker

ed., 1997).

15. Estimates of the number of Hindus in the United States vary

greatly. 2003 U.S. Census, at http://Awww.census.gov/prod/2004pubs/

(Cont'd)

8

more than triple the number in 1990."° The number of Hindu

mandirs (places of worship) in the United States has grown

accordingly, with as many as 700 mandirs in the United States,

forty in Texas, and five in the Austin area alone."’

Several core aspects of Hindu theology directly conflict

with the precepts set forth on the Ten Commandments

Monument, and with the religious anthropology that the

Decalogue symbolizes, with the result that a Hindu viewing the

Ten Commandments Monument would perceive the state as

preferring or endorsing Judeo-Christian beliefs at variance with

his or her own.

Hinduism propounds a theology of panentheistic

monotheism, recognizing that God can be called many names

and may take many forms, and that the means or ways to

(Cont'd)

03statab/pop.pdf, at Table 79 (last visited Dec. 12, 2004) (estimating

766,000 Hindus in the United States in 2001) (citing American Religious

Identification Survey, at hAttp://www.gc.cuny.edu/studies/

key_findings.htm, at Exhibit 1 (2001) (last visited Dec.12, 2004)

(hereinafter “ARIS”]); see also The Harvard Pluralism Project: World

Religions in America at Harvard University, at http://www.pluralism.org/

resources/statistics/tradition. php#Hinduism (last visited Dec. 12, 2004)

(citing various sources estimating 1,032,000 to 1,285,000 Hindus in the

United States as of 2000) [hereinafter “The Harvard Pluralism Project”).

See also, Satguru Sivaya Subramuniyaswami, Dancing With Siva:

Hinduism's Contemporary Catechism, xxii-xxiii (Sth ed. 1999)

(estimating two million Hindus in the United States as of July 1997).

16. According to the Census, between 1990 and 2001 the number

of Hindus grew from 227,000 to 766,000. 2003 U.S. Census, at http://

www.census.gov/prod/2004pubs/03statab/pop.pdf, at Table 79 (last

visited Dec. 12, 2004) (citing ARIS).

17. The Harvard Pluralism Project, at http://www.pluralism.

org/directory/search.phm (last visited Dec. 12, 2004). One mandir

in the Austin area, Barasana Dham, has membership of over

1,000 families. Jd. at http://www.pluralism.org/research/profiles/

display.php?profile=72430 (last visited Dec. 12, 2004).

9

salvation are many.'* Hindu theology does not place

proscriptions on how to pray, and each person may choose which

form of God to pray to on his or her own path to self-realization.

Moreover, Hindus do not conceive of God as a specific, single

entity separate from other living things, in stark contrast to the

portrayal of the God who delivered the Ten Commandments in

Exodus. Rather, for Hindus, God is omnipresent (anantam) and

within all living things. ' Thus, Hindus cannot reconcile their

non-dualistic teachings with the very First Commandment,

which mandates the exclusion of all divine manifestations other

than the Judeo-Christian God. For the same reason, the teachings

of Hinduism cannot be squared with the reference to “the Lord

thy God” in the Fourth Commandment.

Nor can Hindus accept the First Commandment’s

prohibition against “graven images.” The use of murtis (sacred

representations of God in any of God’s various forms) is central

to the practice of the religion for virtually all Hindus.”® These

consecrated images represent the presence of God and help

devotees offer their devotion to God.?!

18. This concept is known in Sanskrit as sama-darshinah, or

“equal vision.” The Holy Geeta, 313-14, 5:18 (Swami Chinmayananda

cmt., trans., n.d.) (“Sages look with an equal eye upon a BRAHMANA

endowed with learning and humility, on a cow, on an elephant, and

even a dog and an outcaste.” Commentary stating in part, “Everywhere

[God] realises the presence of the same Truth, whatever be the

container.”); see also id. at 230, 5:2 (“[I]n whatever way men approach

Me, even so do I reward them; My path do men tread in all ways. . . .”).

19. Id. at 230.

20. For example, Sri Pramukh Swami Maharaj of the Bochasanwasi

Shri Ashar Purushottam Sanstha propounded prayers involving murtis

as one of the defining aspects of Hinduism. See Bochasanwasi Shri

Akshar Purushottam Swaminarayan Sanstha for Kids (BAPS), at Attp:/

/kids.swaminarayan.org/thingstoknow/nityapuja.htm (last visited Dec.

12, 2004).

21. This is not to say that Hindus worship murtis. The idea that

Hindus “worship idols” is a very common misconception. Hindus do

not believe that the murti in a mandir or home is actually the Divine

(Cont'd)

10

Additionally, Hindu theology does not proscribe the time

or manner of prayer to God.” Hinduism teaches that God, the

one Supreme Being, is omnipotent (sarva-shaktitva) and need

not rest. For example, Hindu philosophy holds that God created

the universe with a single inhalation.” Hindus feel no

compulsion to refrain from work or other activities on any

particular holy day of the week. The concept of six days of

creation and a seventh day for rest, the Sabbath, is absent from

Hindu theology. The Third Commandment’s directive on the

Texas Monument to “{rjemember the Sabbath Day, to keep it

holy” is alien to Hinduism.

2. Buddhism. Buddhism was established around 600 B.C.E.

Over 372 million people practice some form of Buddhism

worldwide.“ Buddhism is rapidly expanding in the United

(Cont'd)

Being itself. Hindus fully understand that the Divine itself is much greater

than the physical image. The misconception that Hindus worship idols

has been perpetuated for over 500 years, and continues to date. For

example, in 2004, Orthodox Jewish Rabbis in New York and Israel

forbade the use of Indian hair in wigs because of the misconception that

Hindus worship idols. See Daniel J. Wakin, Rabbis’ Rules and Indian

Wigs Stir Crisis in Orthodox Brooklyn, N.Y. Times, May 14, 2004,

available at http://www.nytimes.com.

22. The Holy Geeta, supra, at 449, 7:21 (“Whatsoever form any

devotee desires to worship with faith — that (same) faith of his I make

(firm and) unflinching.” Commentary stating in part, “. . . the Common

Truth that holds together the multiple universe of names and forms.” “It

is very well-known that, all men do not worship at the same altar.”).

23. The Brhadaranyaka Upanishad 251, 2:4:10 (Sankaracarya cmt.,

Swami Madhavananda trans., 1975) (Commentary stating in part, “(i]t is

the eternally composed and already existent Vedas that are manifested like

a man’s breath — without any thought or effort on [H]is part”); The Holy

Geeta, supra, at 527-30, 9:7-9 (explaining that creation is a continuous and

cyclical process, which takes no effort on the part of God).

24. The World Almanac and Book of Facts 2005 734 (William A.

McGeveran, Jr. et al. eds., 2005) (providing figures for mid-2003) (citing

Encyclopedia Britannica Book of the Year 2004).

11

States, with as many as 2.9 million Buddhists in North America”

and over 2,000 Buddhist centers in the United States, including

over 100 in Texas.”

Buddhism traces its roots to the spiritual quest of a young

man named Siddhartha Gautama.”’ After an extended quest for

enlightenment, Siddharta experienced a spiritual revelation and

was transformed into the “Buddha,” which means “the

enlightened one.” As described by Amicus, Dr. Robert A.F.

Thurman, one of the world’s foremost Buddhist scholars, the

Buddha’s enlightenment did not have to do with God. Rather:

“The Buddha’s enlightenment was . . . a human being’s direct,

exact and comprehensive experience of the final nature and total

structure of reality.”** This attainment of understanding and

experience of the ultimate truth, or enlightenment, is the goal

of all Buddhists.”

The fact that Siddhartha, a human being, achieved

“enlightenment” and became the Buddha on his own — without

the intervention of or direction from God — is foundational for

every form of Buddhism.” “Unlike the religions of Middle

Eastern origin the idea of an almighty god does not play a role

in Buddhism.” The conception of God, or the notion of

25. The Harvard Pluralism Project at http://www pluralism.org/

resources/statistics/tradition. php#Buddhism (last visited Dec. 12, 2004)

(citing various sources); The World Almanac and Book of Facts 2005,

supra, at 731 (providing figures for mid-2003) (citing Encyclopedia

Britannica Book of the Year 2004).

26. The Harvard Pluralism Project, at http://www.pluralism.org/

directory/search.php (last visited Dec. 12, 2004).

27. Richard H. Seager, Buddhism in America 12-13 (1999).

28. Robert A.F. Thurman, Essential Tibetan Buddhism 9 (1995).

29. The Staff of the Nanzan Institute, Buddhist Spirituality: Indian,

Southeast Asian, Tibetan, and Early Chinese xiii (Takeuchi Yoshinori

et al. eds., 1994).

30. See H. Wolfgang Schumann, Buddhism: An Outline of

its Teachings and Schools, 169 (George Fenerstein trans., 1973);

see also 2 The Encyclopedia of Religion 337 (Mircea Eliade ed., 1987).

31. Schumann, supra, at 169.

ae

12

worshipping creator gods, is considered an obstacle to the

enlightenment sought by Buddhists.*?

Thus, Buddhists do not accept the basic premise of the

Ten Commandments, i.e., that a separate divine entity has handed

down Commandments as a king might set rules for his subjects.

The notion of “law” as the result of God’s command to human

beings, as symbolized by the Decalogue, is completely alien to

Buddhism. Nor do Buddhists accept that such a divine entity

ordained either the right relationship between human beings

and God (Commandments 1-3) or among human beings

(Commandments 4-10). This highlights why a Buddhist viewing

the Ten Commandments Monument would perceive the state

as preferring or endorsing Judeo-Christian beliefs.

3. Jainism. Jainism has been recognized as a distinct

religion for over 2500 years. There are an estimated 4.4 million

Jains worldwide* with approximately 75,000 in the United

States.*> The number of Jain temples throughout the country is

growing quickly.** Texas has five Jain centers or temples*’ and

32. Donald S. Lopez, Jr., The Story of Buddhism 34 (2001) (the

Buddha warned his disciples that contemplating “God” or “a creator”

would lead them into “a jungle, a wilderness, a puppet-show, a writing

and a fetter, coupled with misery, ruin, despair, and agony”).

33. Melton, supra, at 199.

34. The World Almanac and Book of Facts 2005, supra, at 734.

35. The Harvard Pluralism Project, at http://www.pluralism.org/

resources/statistics/tradition.php#Jainism (last visited Dec. 12, 2004).

36. The Harvard Pluralism Project, at http://www. pluralism.org/

resources/statistics/tradition.php#Jainism (last visited Dec. 12, 2004)

(quoting Edwin S. Gaustad et al., New Historical Atlas of Religion in

America 272 (2000), which states there were thirty-four Jain temples in

the United States in 1987 and sixty by the mid-1990s). Currently,

The Harvard Pluralism Project lists eighty-nine Jain temples throughout

the United States. The Harvard Pluralism Project, at http://

www.pluralism. org/directory/search.php (last visited Dec. 12, 2004).

37. The Harvard Pluralism Project, at http://www.pluralism.org/

directory/search.php (last visited Dec. 12, 2004).

Tea Tp ee

BAO. VA Ts

13

one of the larger Jain populations in the United States.**

The concept of Ahimsa, non-injury to all living beings, is

the underlying philosophy of Jainism.*’ Jains thereby aspire to

avoid all violence in “deed, in word, and in thought.”

In Jainism, “God” is not a creator“ but rather an enlightened

teacher. This state of enlightenment is within each human

being.* It is this aspect of Jainism that, like Buddhism, conflicts

with the basic premise of the Ten Commandments, i.e., that

God is a creator who has handed down Commandments defining

relationships between humans and with God.

ARGUMENT

As demonstrated above, there are fundamental differences

between the precepts set forth on the Ten Commandments

Monument and Hindu, Buddhist and Jain teachings regarding

the very essence of religion, i.c., the existence and/or nature of

God and the relationship between human beings and God. To

Amici and their co-religionists, the Ten Commandments

Monument is not a list of universal ethical truisms or mere

38. The Harvard Pluralism Project, at http://www.pluralism.org/

resources/statistics/tradition.php#Jainism (last visited Dec. 12, 2004)

(quoting Edwin S. Gaustad et al., New Historical Atlas of Religion in

America 272 (2000)).

39. See Int’] Religious Found., World Scripture: A Comparative

Anthology of Sacred Texts 13 (Andrew Wilson ed., 1991).

40. Id.

41. The Oxford Dictionary of World Religions, supra, at 487;

Hiralal Rasikdas Kapadia, A History of The Canonical Literature of the

Jainas | (Jitendra B. Shah ed., Shree Shwetambar Murtipujak Jaina

Boarding (Ahmedabad), Series Vol. 17, 2000) (“According to Jainism,

the universe is uncreated and unending”).

42. Int’l Religious Found., supra, at 13 (“[E]ach person has within

himself or herself the potential to realize perfection and become a

Paramatman, a soul freed from all karmic fetters and able to reach the

highest point in the universe.”); Paul Dundas, The Jains 110-11 (John

Hinnells ed., 2d ed. 2002) (Jainism “accepts the existence of a divine

principle, the [P]aramatman, often in fact referred to as ‘God’ . . . existing

in a potential state within all beings”). -

14

“ceremonial deism;” it is not a history lesson; it cannot be

dismissed as a de minimis affront to the Non-Judeo-Christian

Religions. Instead, it expresses concepts that conflict with the

most basic beliefs of these religions.

The presence of the Ten Commandments Monument is

unlikely to make those steeped in Judeo-Christian culture feel

like outsiders. But to those who do not accept the religious

authority of the Ten Commandments or the religious

anthropology that they symbolize, the Monument leaves the

unmistakable and unsettling impression that Texas, as a political

body, has endorsed a particular set of religious beliefs and

observances — those embraced by the majority of Texans — as

the officially preferred beliefs. The setting of the Monument

inherently, inescapably, signals to the religious minority of those

practicing non-Judeo-Christian religions, often recent

immigrants, that they are not merely religious outsiders, but

unwelcome strangers to the political community as well.”

I. The Primary Effect Of The Ten Commandments

Monument On Members Of The Non-Judeo-Christian

Religions Is To Confirm That Texas Endorses

The Particular Majority Religious View Reflected In

The Monument

The Establishment Clause undergirds our increasingly

pluralistic society. Waves of immigrants — Christians of all

denominations, Jews, Muslims, Hindus, Buddhists, Jains, Sikhs,

Zoroastrians and others — have come to this country with the

expectation that they will find the freedom to worship in their

43. The presence of the Ten Commandments in the symbolic and

administrative heart of the Texas political community unmistakably

conveys that the government of Texas endorses the listed beliefs. The

grounds of the Texas Capitol are not, like the grounds surrounding the

Ohio statehouse, a legislatively created public forum. See Capitol Square

Review & Advisory Bd. v. Pinette, 515 U.S. 753, 757 (1995). To the

contrary, no monument can be displayed on the grounds of the Texas

Capitol without explicit government approval and none of the other

seventeen monuments on the grounds has anything but a secular message.

15

own way without becoming a political outsider as a consequence

of doing so.

The Establishment Clause is phrased as an absolute:

“Congress shall make no law respecting an establishment of

religion. .. .” It admits no exceptions for majority sentiment,

historical inertia or administrative expedience. It contains no

sunset provision, limitations period or grandfather clause.

The Firth Circuit’s ruling was in error. The Ten

Commandments Monument violates the Establishment Clause

under the facts of this case, i.e., placement in the Texas Capitol

of a central symbol of Judeo-Christian beliefs, a religious symbol

that by its nature, history and content reflects fundamental

differences with Amici s non-Judeo-Christian theology. The Fifth

Circuit declared the text on the Ten Commandments Monument

to he “non-sectarian” as the text did not favor one set of Judeo-

Christian beliefs over another. But the text and the Monument

plainly favor Judeo-Christian beliefs over other religious beliefs.

For practitioners of non-Judeo-Christian faiths, the

Ten Commandments Monument is manifestly sectarian.

Its presence on the grounds of the Texas Capitol is perceived by

reasonable non-Judeo-Christian observers as an inherently

religious symbol that cannot be divorced from its overtly Judeo-

Christian nature and history. The Fifth Circuit’s ruling was error

and should be reversed.

A. The Monument Runs Afoul Of The “Effect” Prong

Of The Court’s Lemon Test, Which The Lower

Courts Misapplied By Focusing Solely On The

Effect Of The Monument On Those Who Agreed

With Its Teachings And Overt Religious Symbolism

The lower courts applied this Court’s Lemon test to

determine whether the Ten Commandments Monument violates

the Establishment Clause. Under the Lemon test, the Court

44. Van Orden v. Perry, 351 F.3d 173, 176 (Sth Cir. 2003)

(describing the Monument as having “a large panel display[ing] a

nonsectarian version of the text of the Commandments”) [hereinafter

“$th Cir. Opinion”).

~ ———— ee -_-— —_——_—_ - 4

16

evaluates whether: (1) the challenged governmental activity has

a secular purpose; (2) the activity’s primary effect advances or

inhibits religion; or (3) the activity fosters an excessive

entanglement with religion.*° A challenged activity that does

not meet the standard for any one of these prongs violates the

Establishment Clause.“

The parties stipulated that the Ten Commandments

Monument did not violate the “entanglement” prong, leaving

only the “purpose” and “effect” prongs to be evaluated. Here,

we focus on the “effect” of the Ten Commandments Monument

and the reasonable perception that it symbolizes state

endorsement of the sectarian views expressed by it. The lower

courts recognized that this Court has refined the effect prong,

interpreting the First Amendment to prohibit government action

that has the purpose or effect of endorsing or disapproving of

religion.’ A display endorses a religion when it “convey/s| or

attempts[s] to convey a message that religion or a particular

religious belief is favored or preferred.”

In analyzing the “effect” of government activity and whether

a particular governmental action may be said to “endorse” a

particular religious view, this Court has looked at the effect on

a reasonable observer.” Most significant for this case, this Court

has been careful to ensure that the reasonable observer include

the views of both the believer and the non-believer, the majority

ana the minority.®

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

46. Edwards v. Aguillard, 482 U.S. 578, 583 (1987).

47. District Court Opinion, 2002 U.S. Dist. LEXIS 26709, at *16;

5th Cir. Opinion, 351 F.3d at 178; see County of Allegheny v. Am. Civil

Liberties Union, 492 U.S. 573, 592-93 (1989).

48. Allegheny, 492 U.S. at 593 (quoting Wallace v. Jaffree, 472

U.S. 38, 70 (1985) (O’Connor, J., concurring)).

49. Id. at 599-600; see id. at 630-31 (O’Connor, J., concurring)

50. See id. at 597 (The question is whether the “challenged

government action is sufficiently likely to be perceived by adherents of

(Cort’d)

ys.

i

17

In the case before the Court, Amici represent religious

minorities in Texas and the nation. Only by taking into account

the views of the faiths that Amici represent can the “reasonable

observer” standard reflect, as it must, the full range of religious

‘sensibility that the First Amendment protects from hostile

government endorsement.*'

That the religiously symbolic force of the Ten

Commandments Monument may have been diluted to the point

that it is acceptable in a vaguely non-denominational way to

the Judeo-Christian majority in Texas does not matter because

the religious diversity of Texas is far broader. If it did matter,

then the Establishment Clause would be marginalized. It would

permit the Judeo-Christian majority to establish some “least

common denominator” of their religious beliefs over the non-

Judeo-Christian minority. It is therefore critical that the

reasonable observer standard include the views and sensibilities

of those of faiths that lie outside the local majority.

The lower courts appear to have evaluated the message of

the Ten Commandments Monument only from the perspective

of those who agree with its general precepts. The Fifth Circuit

described the Monument as containing a “non-sectarian” version

of the Ten Commandments. This description only applies when

the “reasonable observer” is deemed to belong to a Christian or

Jewish “sect.” To a non-Judeo-Christian believer, the Decalogue

cannot fail to be the “sectarian” symbol of another, quite

different, sect.”

(Cont'd)

the controlling denominations as an endorsement, and by the

nonadherents as a disapproval of their individual religious choices.”)

(quoting Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390 (1985));

see also Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 305-06 (2000)

(holding that the First Amendment does not permit majority vote to

neutralize message of state endorsement).

$1. Allegheny, 492 U.S. at 597; see Santa Fe, 530 U.S. at 305-06.

52. Followers of the Non-Judeo-Christian Religions might have

(Cont'd)

18

The lower courts erred by failing to consider the perspective

of Amici, for whom the Ten Commandments is not simply a set

of “non-sectarian” platitudes, and who constitute an ever

growing portion of the public. By only considering the

perspectives of those to whom the Ten Commandments are a

symbol familiar since childhood, the Fifth Circuit minimized

the impact of that symbol on those for whom the Ten

Commandments constitutes an alien set of largely religious

directives.

Had the lower courts properly considered the perspectives

of the significant and growing community of Hindus, Buddhists,

Jains and other non-Judeo-Christian adherents, the outcome of

the effect test would have been quite different. Consideration

of the perspective of a non-Judeo-Christian observer, and the

primary effect on such an observer, would lead to the inescapable

conclusion that the Ten Commandments Monument endorses

Judeo-Christian religious beliefs and precepts and has a primary

effect of advancing Judeo-Christian religions and/or inhibiting

non-Judeo-Christian religions.

B. The Effect Of The Ten Commandments Monument

On Followers Of The Non-Judeo-Christian

Religions Is To Signal An Endorsement Of

Particular Religious Views

. The effect of placing a six-foot monument of a central

Judeo-Christian religious text at the seat of state government is

to underscore the government’s endorsement of the particular

(Cont'd)

perceived the monument differently were it surrounded by other

examples of moral codes, such as the Buddhist Four Noble Truths and

Eightfold Way To The Termination Of Suffering, which includes

teachings on the attainment of enlightenment containing both secular

and non-secular aspects, Schumann, supra at 65-68, and/or the Hindu

Yamas and Niyamas, a code of conduct which includes ten restraints

and ten religious practices to build character, the foundation for happiness

and spiritual unfoldment, Satguru Sivaya Subramuniyaswami, Dancing

with Siva: Hinduism Contemporary Catechism 187-89 (Sth ed. 1999).

19

views espoused by that text. This Court has permitted explicitly

religious conduct or speech in governmental settings or at public

events only when the context makes clear that the government

is not endorsing the beliefs espoused in the speech. Thus, this

Court permitted the display of a créche in Lynch because the

context demonstrated that the particular government display in

question celebrated the secular, not religious, aspects of

Christmas.* But, this Court struck down the display of a créche

in Allegheny because the display was simply religious without

any significant secularizing influences.“ Similarly, the Court

permitted the display of a :ross in Capitol Square because the

location at issue was a “traditional public forum” and thus the

reasonable observer would know that the government allowed

private and unendorsed speech at that location, even though it

was Close to the seat of government.* By contrast, this Court

struck down the display of the Ten Commandments in Stone

because the context (displaying the Ten Commandments in

public school classrooms) had the effect of state endorsement

of the religious beliefs displayed.* Finally, this Court held that

the Establishment Clause did not prevent a school from allowing

a religious club to meet on school grounds after school because

the school allowed many groups to use the grounds, thus not

endorsing the religious message.’ By the same token, the Court

held constitutionally infirm a school practice of allowing

“non-sectarian” prayers at both high school graduations®™ and

football games® because the context of having a single

perspective presented at such events conveyed a message of

government endorsement. Like the conduct struck down in

53. Lynch v. Donnelly, 465 U.S. 668, 680 (1984).

54. Allegheny, 492 U.S. at 598.

55. Capitol Square, 515 U.S. at 780-81.

56. Stone v. Graham, 449 U.S. 39, 42 (1980) (per curiam).

57. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 114 (2001).

58. Lee v. Weisman, 505 U.S. 577, 594 (1992).

59. Santa Fe, 530 U.S. at 305.

20

Allegheny, Stone, Lee and Santa Fe, the display of the

Ten Commandments at the Texas Capitol violates the

Establishment Clause because as displayed, it has the effect of

endorsing a religious message without secularizing influences.

The inference of government endorsement is particularly

strong here because the Ten Commandments undoubtedly reflect

the religious views of the majority of Texans. An adherent of a

non-Judeo-Christian faith in Texas for any length of time cannot

help but be aware of his or her status as part of a religious

minority. Texas is part of the “Bible Belt.” For the State of Texas

to place on its Capitol grounds a monument to one of the central

symbols of the religious majority, and have it be the only outdoor

monument with explicitly religious symbols, is in itself

powerfully suggestive of official endorsement.”

It is important to emphasize that Amici do not take issue

with the specific ethical teachings of the Ten Commandments.

Amici share with all people of good faith the belief that human

beings should not kill each other, should not steal from each

60. See Sth Cir. Opinion, 351 F.3d at 175-76. The following

additional factors bolster the endorsement effect of the

Ten Commandments Monument on the Non-Judeo-Christian Religions:

(1) the Monument is on the State Capitol grounds; (2) the Monument is

owned and maintained by the state; (3) the Texas Capitol grounds are

not a public forum; (4) there is no disclaimer of the explicitly religious

message on the Monument; (5) the Monument is in the traditional shape

and form of the Biblical Stones and contains numerous Judeo-Christian

symbols such as the Chi Rho, Stars of David, the All-Seeing Eye in an

equilateral triangle and ancient Hebrew text in tablets; (6) none of the

other sixteen monuments on the grounds of the Texas Capitol are

religious, and many, if not all, reflect government endorsed speech; and

(7) as the District Court recognized, the context of the Monument does

not suggest that it is part of a display regarding the history of lawmaking.

In short, the context of the Monument does nothing to dispel its

overwhelmingly religious impact, particularly when viewed by those

outside of the Judeo-Christian context. In terms of context, the Ten

Commandments Monument is similar to the stand-alone créche this Court

struck down in Allegheny, not the contextualized and secularized

Christmas display that passed constitutional muster in Lynch.

21

other, and should honor their parents. The Ten Commandments

Monument is not presented, however, as a mere set of universally

shared ethical or legal norms. Nor is it presented as a lesson in

history. Rather, it grounds the source of law in a specific religious

tradition, the imposition of divine commandments described in

Exodus. The Monument’s message cannot be divorced by a

reasonable viewer from its biblical origins and its religious

symbolism and connotations. Such a monument unmistakably

conveys the officially preferred status of the specific religious

traditions that accept the Exodus story as holy writ.

The Ten Commandments are an important religious symbol,

a symbol that conveys a religious message very different from

the religious views of the followers of the Non-Judeo-Christian

Religions. The effect of non-Judeo-Christians having to confront

this religious symbol in the seat of government should have

been part of the Fifth Circuit’s reasonable observer analysis.

Failure to consider these issues is reversible error and

consideration of these issues compels a finding that the

Monument violates the Establishment Clause.

C. The Placement And Religious Content Of The Ten

Commandments Monument Informs Non-Judeo-

Christians That They Are Political Outsiders

The Ten Commandments Monument is located adjacent to

the Texas Capitol building on the State Capitol grounds. It is

next to a public sidewalk and is on a “direct line between the

legislative chambers, the executive office of the governor, and

the Supreme Court building.”*' A reasonable observer walking

by the Ten Commandments Monument would understand that

the State permitted the Morument to be placed on the Capitol

grounds and pays for its maintenance. Thus, a reasonable

observer would perceive the State of Texas as endorsing the

Monurnent, an undeniably religious display.

The Fifth Circuit suggests that the religious effect of the

Ten Commandments Monument is diluted by an inscription

61. Sth Cir. Opinion, 351 F.3d at 181.

22

above the bench in the Supreme Court building, the Confederate

Seal, the Mexican Flag and the Seal of Mexico, all found

somewhere on the Texas Capitol grounds. However, each of

the items described by the Fifth Circuit is no more than

ceremonial deism and has a direct relation to Texas.

In contrast, the Ten Commandments Monument is unique. It is

not ceremonial deism; it is not related to the history of Texas;

and, as the District Court ruled, it did not form the basis of

Texas law.”

Thus, the Ten Commandments Monument is the only

monument on the Texas Capitol grounds rooted in the history

and beliefs of a specific religious tradition, and having no relation

to the history of Texas. A non-Judeo-Christian, viewing the Ten

Commandments Monument in this context, which includes its

presence in a heavily Christian state, would understand that those

who ascribe to the Ten Commandments are insiders, and those

who do not are outsiders and disfavored members of the political

community.® The primary effect of the Monument, taking into

account the perspective of Amici, is to put the weight of the

state behind an image underscoring the otherness of the Amici.

The Fifth Circuit, by ignoring the perspective of non-Judeo-

Christians, committed reversible error.

62. Id. at 176, 180.

63. District Court Opinion, 2002 U.S. Dist. LEXIS 26709, at **

15-16.

64. For a listing of the many artifacts on the Texas Capitol grounds,

see Sth Cir. Opinion, 351 F.3d at 175-76.

65. See Lynch, 465 U.S. at 688 (O’Connor, J., concurring)

(“Endorsement sends a message to nonadherents that they are outsiders,

not full members of the political community, and an accompanying

message to adherents that they are insiders, favored members of the

political community.”).

23

Il. The Ten Commandments Monument Violated The

Establishment Clause Forty Years Ago And Continues

To Do So Today

The Fifth Circuit’s conclusions were based in significant

part on the finding that the Ten Commandments Monument has

stood on the grounds of the Texas Capitol for forty years without

recorded complaint. This must mean, the Court reasoned, that

reasonable observers do not view it as an endorsement of

religious belief. This reasoning is fatally flawed.

Surely it cannot be the law of the land that those who would

violate the Constitution need only do so in a way that their

actions go unchallenged for an extended period of time. Such a

rule would ensure that the most egregious constitutional

violations could go unremedied. Moreover, such a rule ignores

the specific historical reasons why the Ten Commandments

Monument has not previously been challenged, at least by those

represented by Amici.

Establishment Clause jurisprudence should not enshrine the

historical views of the unchallenged majority, but should reflect

the increasing and increasingly important religious diversity of

the United States. As Justice Brennan stated:

our religious composition makes us a vastly more

diverse people than were our forefathers. . . . Today the

Nation is far more heterogeneous religiously, including

as it does substantial minorities not only of Catholics

and Jews but as well of those who worshin according

to no version of the Bible and those who worship no

God at all. In the face of such profound changes,

practices which may have been objectionable to no

one . . . may today be highly offensive to many persons,

the deeply devout and the nonbelievers alike.©

66. Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203,

240-41 (1963) (Brennan, J., concurring) (striking down a more than

fifty year-old statute requiring opening exercises in public schools that

included Bible readings) (internal footnote and citation omitted).

24

A. The Passage Of Time Does Not Legitimize An

Otherwise Improper Government Activity

The Establishment Clause analyses of the lower courts gave

weight to the presence of the Ten Commandments Monument

at the Texas Capitol without legal challenge since 1961,°’

suggesting that the passage of time estops challenges to the

Ten Commandments Monument. Such reasoning would create

a dangerous First Amendment precedent. Could a government

suppress free speech, for example, and then defend itself on the

basis of the prolonged absence of the speech it had succeeded

in suppressing? Should governments feel emboldened to install

majority-sponsored religious displays in the hopes that they can

avoid minority group complaints for just long enough to defeat

them? Fundamental liberties such as those set forth in the First

Amendment should not be deemed casually waived or subject

to arbitrary limitations periods.*

Since its erection in 1961, the Ten Commandments

Monument has been an improper endorsement by Texas of

Judeo-Christian religions in violation of the Establishment

Clause. The Ten Commandments themselves have not lost or

changed their meaning, symbolism or impact since 1961.® There

67. 5th Cir. Opinion, 351 F.3d at 181-82 (the length of time the

Monument has been in place “adds force to the contention that the

legislature had a secular purpose”; the “reasonable observer would

perceive an historic plaque as less of an endorsement of religion”);

see District Court Opinion, 2002 U.S. Dist. LEXIS 26709, at *19 (“it is

noteworthy that the monument was in place for more than forty years

before any individual or organization complained about it”).

68. Like discrimination in education and voting, the passage of

time does not legitimize an otherwise unconstitutional government

activity.

69. The circumstances here are far different than those in Marsh

v. Chambers, 463 U.S. 783 (1983). Marsh addressed prayers before

legislative sessions, a practice with a “unique history” that is as old as

the nation itself and which was engaged in by the Framers. /d. at 791.

The Court took comfort that the practice was viewed by the Framers as

(Cont'd)

25

is no basis for suggesting that State expression of the

Ten Commandments is less an endorsement of religion now

than previously. Indeed, given the increasingly pluralistic nature

of Texas, like American society as a whole, the presence of the

Ten Commandments is now more likely to be perceived as

religious than before.”

That no individual or organization complained before

Petitioner does not cure the ongoing Establishment Clause

violation. In view of the history of the Non-Judeo-Christian

Religions represented by Amici, it is not surprising that the

followers of these religions had not openly complained.

B. The History Of Amici In Texas (And The United

States) Explains Why Followers Of The Non-Judeo-

Christian Religions Had Not Previously Openly

Complained About The Ten Commandments

Monument

\

The lower courts reasoned that if anyone had religious

objections to the Ten Commandments Monument, someone

would have raised them long before the instant action had been

brought. This reasoning is flawed, however, because very few

adherents of non-Judeo-Christian faiths were present in 1961

or for many years thereafter to voice any complaint. Texas cannot

use its own historical lack of religious diversity to justify its

(Cont'd)

harmonizing religious views rather than supporting any particular one.

Indeed, the process by which the chaplain in Marsh was selected and

the prayers he delivered negated an intent by the Nebraska legislature to

endorse a particular religion. Finally, the religious observance was brief

and was addressed to a small group of adults who wielded state power,

not to persons subjected to the exercise of state power, circumstances

that mitigated the risk of religious indoctrination. These distinguishing

factors are absent here, where the practice at issue is contemporary,

comes with no explicit endorsement in words or deeds by the Framers,

is overtly sectarian, is directed to the general public (including large

numbers of visiting schoolchildren), not simply to the lawmakers

themselves, and is on permanent display.

70. See Int’! Religious Found., supra, at 10.

26

continued sponsorship of the undeniably sectarian Ten

Commandments Monument. The Fifth Circuit’s reliance on the

historical absence of debate elevates majoritarianism over

Establishment Clause jurisprudence.

Until recently, the Amici were too small a minority in Texas

to be expected to voice their objections to the Ten

Commandments Monument. Hindus, Buddhists and Jains

primarily immigrated to the United States from Asian countries

after 1965.”' Immigration from Asia was stunted during and

after World War I because of a significant anti-Asian prejudice.”

This bias led to the enactment of the Asian Exclusion Act of

1917,” which severely limited Asian immigration for a half

century under a strict quota system. With the passage of the

Immigration and Nationality Act of 1965, limitations on

immigration to the United States were relaxed, and quotas from

Asian countries were raised to the same level as European

countries.”? Nevertheless, it was some years before those

immigrants could become citizens, further inhibiting their

political voice. Accordingly, Hindu, Buddhist and Jain

immigrants could not have been expected to openly challenge

the Ten Commandments Monument in 1961.”

}

71. Melton, supra, at 197-98.

72. Immigration Act of 1917, ch. 29, 39 Stat. 874 (1917) (repealed

1952). The 1952 Act, although repealing the 1917 Asian Exclusion Act,

retained the same restrictive quotas found in the 1917 Act. Immigration

& Nationality Act of 1952, ch. 477, 66 Stat. 163 (1952) (amended 1965,

79 Stat. 911); see also Melton, supra, at 198.

73. Immigration & Nationality Act of 1952, ch. 477. 66 Stat. 163

(1952) (amended 1965, 79 Stat. 911); see Melton, supra, at 198.

74. The few non-Judeo-Christians who may have been present in

Texas in 1961 may not have felt emboldened to challenge the Monument.

Congress had not yet passed The Civil Rights Act of 1964 and the country

would not see the first strong enforcement of civil rights laws for several

years. The lower courts wrongly assumed that asserting an objection to

the Monument in 1961 would have taken no more courage than it would

today.

27

In recent years the number of Asian immigrants has been

steadily rising and, not surprisingly, so has the number of

followers of the Amici’ religions. For example, according to

the 2003 U.S. Census, the number of Hindus, Buddhists, and

Jains in the United States approximately tripled from 648,000

in 1990 to 1,933,000 in 2001.” This trend is similar in Texas.

For example, the first Hindu mandir in the nation was built in

the late 1970s.”° Today there are forty in Texas alone.” There

are also currently over 100 Buddhist temples and five Jain

temples in Texas.”

Finally, the Fifth Circuit’s ruling is inconsistent with the

history and purpose of the Establishment Clause. It was not lost

on the Framers that the United States was created in large part

by the emigrations of religious dissidents. The drafters of the

Bill of Rights devised the Establishment Clause as a means of

protecting the religious views of those who dissent or disagree

by ensuring that state power would never throw its weight behind

any religion or religion in general. As the population of the

United States grows ever more religiously diverse, the original

purpose of the Establishment Clause becomes ever more critical.

The Ten Commandments Monument is sectarian and violates

the Establishment Clause today, just as it did forty years ago.

That it took forty years for religious pluralism to give rise to an

75. 2003 U.S. Census, at hitp://www.census.gov/prod/2004pubs/

03statab/pop.pdf at Table 79 (last visited Dec. 12, 2004) (finding that

between 1990 and 2001, respectively, the number of Hindus grew from

227,000 to 766,000 and the number of Buddhists grew from 401,000 to

1,082,000); The Harvard Pluralism Project, http://www.pluralism.org/

resources/statistics/tradition.php#Jainism (last visited Dec. 12, 2004)

(the number of Jains grew from 20,000 to 75,000). ;

76. Thomas A. Tweed & Stephen Prothero, Asian Religions in

America: A Documentary History 289 (1999).

77. The Harvard Pluralism Project, at http://Awww.pluralism.org/

directory/search.php (last visited Dec. 12, 2004).

78. Id.

28

impetus to challenge Texas’ actions is no defense. This is

especially true with regard to followers of the Non-Judeo-

Christian Religions represented by Amici.

CONCLUSION

The Ten Commandments Monument is a large granite

monument in the traditional shape of the Biblical Stones

engraved with a message from the Judeo-Christian God and

sitting on the path to the seat of political power in a

predominantly Christian state. The lower courts erred by failing

to consider the effect of this Monument on non-Judeo-Christians,

such as the followers of the religions represented by Amici. As

set forth above, the Ten Commandments Monument sends the

message to such non-Judeo-Christians that the State of Texas

endorses Judeo-Christian religions and that Judeo-Christians

are insiders while all others are outsiders. Amici urge this Court

to consider such effects and conclude that the Ten

Commandments Monument violates the Establishment Clause

of the First Amendment.

Sunac A. SHUKLA Respectfully submitted,

Legal Counsel Henry C. DINGER

Nikui N. JosHi Counsel of Record

Hinpu AMERICAN FOUNDATION Goopwin | PROCTER LLP

15 Arbor Club Drive Exchange Place

Suite 103 Boston, MA 02109

Ponte Vedra Beach, FL 32082 (617) 570-1000

JEFFREY A. SIMES

KerrH A. ZULLOW

Dary_ L. WIESEN

ASEEM V. MEHTA

JESSICA JAMIESON

Jessica S. PARISE

Goopwin | PROCTER LLP

599 Lexington Avenue

New York, NY 10022

(212) 813-8800

Counsel for Amici Curiae

la

APPENDIX

LISTING AND DESCRIPTION OF AMICI

Hindu Organizations

* Hindu American Foundation (HAF): HAF is a non-

partisan, non-profit organization committed to providing

a voice for nearly two million Hindu Americans. HAF

interacts with and educates government, media, think

tanks, academia and the public about Hinduism and

issues of concern to Hindus locally and globally.

Promoting the Hindu and American ideals of

understanding, tolerance and pluralism, HAF firmly

opposes hate, discrimination, defamation and terror.

¢ Arsha Vidya Pitham: Arsha Vidya Pitham is a non-

profit church in California and Pennsylvania with

approximately 12,000 members. Arsha Vidya Pitham is

committed to making Hindu culture, religion, and

religious disciplines available to all Hindus and non-

Hindus, as well as facilitating the in-depth study of

Sanskrit language, the language of Hindu religious text

and the traditional study of classical Indian disciplines.

Arsha Vidya Pitham strives to be a place where one

learns the knowledge imparted by the Rishis (great

sages).

¢ Arya Samaj of Michigan: Arya Samaj of Michigan is

a non-profit organization with about 2,000 followers in

Michigan. Arya Samaj of Michigan strives to promote

Hinduism and to follow the principles of the Arya Samaj.

2a

Appendix

The Hindu International Council Against

Defamation (HICAD): HICAD is a non-profit

organization dedicated to eliminating bias against Indian

traditions while promoting diversity, pluralism and

tolerance.

Hindu University of America, Inc.: The Hindu

University of America is a non-profit organization whose

purpose is to provide learning, research and training in

a broad spectrum of topics related to Vedic/Hindu

culture, including religion, philosophy, and practices.

Navya Shastra: Navya Shastra is a United States-based

non-profit organization dedicated to fostering the

spiritual equality of all Hindus. Navya Shastra has

members in ten countries, including the United States.

Saiva Siddhanta Church: Saiva Siddhanta Church is

a non-profit church with 1,000 members. The mission

of the church is to protect, preserve and promote the

Saivite Hindu religion. Saiva Siddhanta Church also

publishes Hinduism Today, which has a circulation of

over 250,000.

3a

Appendix

Jain Organizations

The Federation of Jain Associations in North

America (JAINA): JAINA is a non-profit umbrella

organization of over sixty-two local Jain Associations

in the United States and Canada, and represents most of

the Jains in the United States. Among JAINA’s

objectives are to promote religious and educational

activities related to the Jain religion, to develop better

understanding of the Jain religion, and to promote

charitable and humanitarian activities in North America

and around the world.

Other Organizations Or Individuals

The Interfaith Freedom Foundation: The Interfaith

Freedom Foundation is a non-profit organization

devoted to defending the constitutional rights of

Muslims, Sikhs, Hindus, Buddhists, Jews and other

religious minorities, including their right to practice their

respective religions.

Dr. Robert A.F. Thurman: Dr. Thurman is a world-

renowned scholar, Professor of Indo-Tibetan Studies at

Columbia University, and is the Director of Tibet House

in New York City. He is also a former Tibetan Buddhist

monk and a close personal friend of His Holiness the

14th Dalai Lama. Dr. Thurman is also an author and has

lectured all over the world on the subject of Buddhism.