Amicus Curiae Brief — Van Orden v. Perry

IN THE

Supreme Court of the Anited States

THOMAS VAN ORDEN,

Petitioner,

V.

RICK PERRY, in his official capacity as Governor of Texas

and Chairman, State Preservation Board, et al.

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICI CURIAE THE STATES OF

INDIANA, ALABAMA, ARIZONA, ARKANSAS,

FLORIDA, IDAHO, KANSAS, KENTUCKY,

LOUISIANA, MISSISSIPPI, NORTH DAKOTA, OHIO,

PENNSYLVANIA, SOUTH CAROLINA, SOUTH

DAKOTA, UTAH, VIRGINIA, AND WYOMING

IN SUPPORT OF THE RESPONDENTS

Office of the Indiana STEVE CARTER

Attorney General Attorney General

IGC South, Fifth Floor THOMAS M. FISHER*

302 West Washington Street Special Counsel

Indianapolis, IN 46204 REBECCA WALKER

(317) 232-6201 Deputy Attorney General

*Counsel of Record Counsel for Amici States

(Additional Counsel Listed on Inside Cover)

Troy King

Attorney General

State of Alabama

Terry Goddard

Attorney General

State of Arizona

Mike Beebe

Attorney General

State of Arkansas

Charles J. Crist, Jr.

Attorney General

State of Florida

Lawrence G. Wasden

Attorney Genera!

State of Idaho

Phill Kline

Attorney General

State of Kansas

Gregory D. Stumbo

Attorney General

State of Kentucky

Charles C. Foti, Jr.

Attorney General

State of Louisiana

Jim Hood

Attorney General

State of Mississipp!

Wayne Stenejem

Attorney General

State of North Dakota

Jim Petro

Attorney General

State of Ohio

Gerald J. Pappert

Attorney General

State of Pennsylvania

Henry McMaster

Attorney General

State of South Carolina

Lawrence E. Long

Attorney General

State of South Dakota

Mark L. Shurtleff

Attorney General

State of Utah

Jerry W. Kilgore

Attorney General

State of Virginia

Patrick J. Crank

Attorney General

State of Wyoming

QUESTION PRESENTED

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

presenting the Ten Commandments, located on government

property between the Texas State Capitol and the Texas

Supreme Court, is an imper:nissible establishment of religion

in violation of the First Amendment.

TABLE OF CONTENTS

See Fe ID iccirtesciinssisinindnnneneinintesanmonentie i

BAR GE ATURE ccccevenonsnsesescecssossescescnsnsssees ill

INTEREST OF THE AMICI STATEG..................:000000+ l

SUMMARY OF THE ARGUMENT .....0000.0..0...c.ccceeeeee 2

TE invesihesicstsenpiieciniaiitibidiitiniaisldiniaiaiiaaca ioe 3

I. Texas’ Monument Should Be Upheld As An

Encomium To Heritage, Similar To Other

Ubiquitous, Benign Government Tributes To

RN TUN UITITIINIIII: siscitesesociteestscatseinitneneieieipitchiniateasa 3

II. Establishment Clause Inquiry Into Government

Purpose Is Unfair And Unworkable................... 8

A. The secular purpose test leads to unfair

results, particularly when past improper

purposes taint new displays having

legitimate secular purposes .................-.000+++ 8

B. The purpose test has shifted over time......... 11

C. The purpose test’s uneven application stems

from its inherent unsuitability as a means

of detecting “establishments” of religion..... 16

D. Historical displays with religious connota-

tions should be judged only as to whether

they represent actual religious coercion....... 19

aise ccenecssincinscnsernsinsisteisinnecneniiieitiihuiteiienniaiimiiitainisldebiiiii 22

ill

TABLE OF AUTHORITIES

Cases Page

Allegheny v. ACLU, 492 U.S. 573 (1984)......:c2e000e8 19, 20, 21

ACLU of Ky. v. McCreary County, Ky.,

354 F.3d 438 (6" Cir. 2003), cert. granted,

125 S.Ct. 310 (Oct. 12, 2004) (No. 03-1693) .......... passim

Board of Educ. of Westside Cmty. Sch. v. Mergens,

SB UE, Be Ce ictcctrcensesersnitniarnittinianuaninantanian 12, 14, 17

Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000) .....8, 9

Bowen v. Kendrick, 487 U.S. 589 (1988)...........cccccceceeee 12, 14

Edwards v. Aguillard, 482 U.S. 578 (1987)..........0000+ passim

Elk Grove Unified Sch. Dist. v. Newdow,

SOE, Be Cee esescectsesctscensesasitanninnannicsmuininmeneen 15

Eugene Sand & Gravel, Inc. v. City of Eugene,

SES Pe Fe GB icrcnatecsccnsennnstsencinienicnmnimnsiie 11

Freethought Soc'y of Greater Philadelphia v. Chester

County, 334 F.3d 247 (3d. Cir. 2003) ...........sccccssesessseeeeees 4

Gonzalez v. North Township of Lake County

Indiana, 4 F.3d 1412 (7° Cir. 1993) ..........cccccseeseesseseeeeees 11

Indiana Civil Liberties Union v. O’Bannon,

110 F. Supp. 2d 842 (S.D. Ind. 2000). ...........ccccceeeseees 6, 10

iV

Cases Page

Indiana Civil Liberties Union v. O'Bannon,

259 F.3d 766 (7" Cir. 2001), cert. denied,

ee es Py ee iccecnisecniticensinaiiinidiaiteniesinninaiaes 9,10, 11

Kreisner v. San Diego, | F.3d. 775 (9" Cir. 1993) .....c-cecs000- 11

Lemon v. Kurtzman, 403 U.S. 602 (1971) .......... eee 12, 14

Lynch v Donnelly, 465 U.S. 668 (1984).............ccccceeeee passim

Marsh v. Chambers, 463 U.S. 783 (1982) .......ccccccsccceeeeeeee 20

McGowan v. Maryland, 366 U.S. 420 (1961)................e000ee 15

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

ee Sa I ilinscisciiemicseipriecnibpneauridaniidaniieniinnibieniiisiaiibi 3,4

Mueller v. Allen, 463 U.S. 388 (1983) .........ccccccecceseeeeee 13,14

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

ee i I icisccaiencitibilesscieciesicibetipinitnsasinniii 14, 15, 16

State v. Freedom From Religion

Found., Inc., 898 P.2d 1013 (Colo. 1995) 20.0.0... eeeeeeeeeeees 8

Stone v. Graham, 449 U.S. 39 (1980) oo... 13, 16, 21

Wallace v. Jaffree, 472 U.S. 38 (1985) .......ccccccceeeeee 12, 13, 15

Widmar v. Vincent, 454 U.S. 263 (1981) ......cccccccccccceeeeeeeeeee 13

Zorach v. Clausen, 343 U.S. 306 (1952) .....cccccccceeeceecceeeseeee 20

Vv

Constitutional Provisions Page

U.S. Const. Amend. I (Establishment Clause)............. passim

U.S. Const. Amend. XIV (Equal Protection Clause)........... 18

Other Authorities Page

Andrew Koppelman, Secular Purpose,

eee 19

Architect of the Capitol, Works of Art in the

Capitol Complex, at http://www.aoc.gov/cc/cc_art.htm

(last visited November 30, 2004). .............ssccccsseseeseeeenees 6,7

Architect of the Capitol, Works of Art in the

Capitol Complex, at

http://www.aoc.gov/cc/art/nsh/index.cfm

pet CEERI FET. FEA, BD cvcccncscesnnscssesnrnsssemnesenmsenseveren 7

Architect of the Capitol, Works of Art in the

Capitol Complex, at http://www.aoc.gov/cc/

art/lawgivers/lawgivers.cfm

Cast VEE TEU. FO, BOD cccceccccscnncernssenssesnesesentnseseoesnes 7

C.W. Short & R. Stanley-Brown, Public Buildings,

Architecture Under the Public Works

Administration 1933 to 1939 141 (1939) .......cccccceceeeeeeeees 7

Francis Morrone, Statues and Civic Memory, City J.

(Summer 1999), available at http://www.city-

journal.org/html/9_3_urbanities_statues.htmi

Cast viatted Maw. SB, BEDS) cccccocesssssssssscessexssscssnsecossesennescses 4

Francisco Pio Ruggiero, State Capitols: Temples of

Sovereignty 140 (2002). ..........csccsssssssssscsrsessseseersssesesennes 6

V1

Other Authorities Page

Gilgal Garden, History of Gilgal Garden, at

http://www.mediadivide.org gilgal/history.html

Se IEE TEL: 0, AUETEEED crstivennussdsicrteiictedieibenpadeeieiniteiasiensaes 5

Hal Culbertson, Note, Religion in the Political Process:

A Critique of Lemon's Purpose Test,

Pe le Sale Mies RNG SP UIE icernionccesiccnnsesmentsonesistuneceninates 19

Hawaii.coin, Hawaii State Capitol Building, at

http://www. hawaii.com/visit/details.php?id=

329&type=attractions (last visited Nov. 30, 2004). ........... 4

Honolulu, Foster Botanical Garden Master Plan, at

http://www.co.honolulu.hi.us/

parks/facility/foster/index | .htm

ee ee es Bis CE ceprertniictrtincncnnitisintnmnteninnocnsinsoteni 4

Human Events Online, Exclusive Photo Essay: God

in the Temples of Government, at http://www.human

eventsonline.com/article.php?id=244 |

(last visited Nov. 30, 2004). ........................scsseecccceceseeees 6,7

Inetours.com, Tour San Francisco, The Japanese Tea

Garden in San Francisco’s Golden Gate Park, at

http://www.inetours.com/Pages/SFNbrhds/

Japanese_Tea_Garden.html

ne Nee 5

Michael Stokes Paulsen, Lemon is Dead,

43 Case W. Res. L. Rev. 795 (1993)............ccccccccccsccccecees 18

vii

Other Authorities

Minnesota Jud. Branch, Sup. Ct.,

Minnesota Supreme Court, at http://www.courts.

state.mn.us/documents/CIO/otherResources/

Minnesota State Capitol Bidg., at

http://www.minnesotabound.com/visit/Capitol/

SE SEIIITIITEIIL, 20tt SII ccnisirssinicsnteniiitinindnemniiemeemcinel 4

Old Economy Village, at http://www.oldeconomy

village.org (last visited Nov. 30, 2004) ............:00 cessseeeeeeees 7

Oroville Parks and Trees Dep't, Oroville Chinese Temple,

at http://www.cityoforoville.

org/Parks/ChineseTempleHistory.html

a ets GEA, Se etrercenesemmsnenencmnnsemnnseesonnes 5

Pat Costello, Photo of the Mural on City Hall, Sept. 15,

2000, at http://www.juneauphotos.com/

index.asp?r=605 (last visited Nov. 30, 2004)... ............:00+0 5

Petition for Writ of Certiorari filed Dec. 28, 2001, in

O’Bannor v. Indiana Civil Liberties Union, No. 01-966,

7la-74a, cert. denied, 534 U.S. 1162 (2002) ................0000 5

Russell Kirk, The Roots of American Order 38 (1974). ........ 8

St. Louis, Dep't of Parks, Recreation and Forestry, St. Louis

City Parks Ornamental Structures and Fountains, at

http://stlouis.missouri.org/citygov/parks/parks_div/

facilities/fountains.html (last visited Nov. 30, 2004)......... 5

Sara Evans Barker, The Rule of Law, Traces of Ind.

and Midwestern Hist., Summer 2003, at 4...................0000+ 6

Viil

Other Authorities Page

Sean Scully, Ventura Faces Suit over Park's Cross, Wash.

Times, Apr. 14, 2003, available at http://www.

papillonsartpalace.com/venrtura.htm

a Nn eRe: TE. A cepenieniesnesninieiiicrinisisicdenianisiadiieiiabaninas 5

Steven D. Smith, Symbols, Perceptions and Doctrinal

Illusions: Establishment Neutrality and the ‘‘No

Endorsement” Test,

86 Mich. L. Rev. 266 (1987)...........ccccccccsccssssseeees 14, 15, 18

TravelJuneau.com, Juneau Downtown Area Map, at

http://www.traveljuneau.com/discover/maps/

downtown/downloads/juneau.pdf

gS Ee 4,5

U.S. Dist. Ct., Dist. of Columbia, History of

E. Barrett Prettyman Federal Courthouse, at

http://www.ded.uscourts.gov/court-history.html

ee NE PUIG: NUNN, IIIT srstccessccscnrnnssensntceiiannisppesieanlibiieeiieibd 6

INTEREST OF THE AMICI STATES

The State of Indiana submits this brief on behalf of itself

and 17 other amici states in support of Texas and the decision

below upholding the constitutionality of Texas’ Ten

Commandments display. Texas’ monument, like other

existing and proposed Ten Commandments displays around

the country, is a tribute to a seminal part of our Nation’s

history and civilization, particularly with respect to the rule of

law. The Court’s decision in this case, as well as its decision

in American Civil Liberties Union of Kentucky v. McCreary

County, Kentucky, 354 F.3d 438 (6" Cir. 2003), cert. granted,

125 S.Ct. 310 (Oct. 12, 2004) (No. 03-1693), will have a

direct impact on the continued viability of thousands of

government Ten Commandments monuments that have

become fixtures of statehouse and courthouse lawns around

the country, as well as on the permissibility of future or

replacement displays.

Doubtless the ruling here will also have a substantial

impact on other government commemorations of religious

heritage. State and local governments frequently erect

monuments, hang plaques, and maintain frescos and murals to

celebrate local and national history and culture, including

events and ideas rooted in religion. Such tributes remind

citizens and newcomers alike of where we came from and

what our forebears valued. It is not too much to say that,

regardless of individual creed, such knowledge is critical to

understanding who we are now as a people—as Americans,

Texans, Kentuckians, Hoosiers, Alabamians or citizens of

wherever we live.

The amici States thus have a compelling interest in

defending their ability to commemorate all aspects of their

heritage, from the battles to gain and preserve liberty, to the

roots (religious or otherwise) of liberty, the rule of law, and

other social values. The Court should uphold Texas’

monument, as well as the display at issue in McCreary

County, to ensure that religious heritage is not banished from

the public square.

2

SUMMARY OF THE ARGUMENT

f

Throughout the United States, state and local governments

have incorporated into their buildings, grounds and parks

various displays, monuments, statues, paintings, and other

artistic expressions that have both religious and secular

meaning. These displays exist as a part of an overall

education of the foundations of our governments and culture.

Such displays are not intended to declare official religious

doctrine, nor is anyone likely to mistake them for such. Our

republic has a rich tradition of displaying representations of

our religious heritage. Such displays are everywhere. Surely,

no reasonable person could say that the cumulative effect of

these displays has been to advance religion, to establish a

church or religious orthodoxy, or to coerce individuals into

espousing particular religious views. There is nothing about

Ten Commandments displays, new or old, that threatens a

tipping point of official religious sanction or indoctrination.

Using the secular purpose test to evaluate government

displays of the Ten Commandments and other symbols of

religious heritage has led to inconsistent, frustrating and

ultimately inequitable results. Governments having

substantially identical displays often see disparate outcomes

simply because an official statement or the participation of

clergy at a dedication ceremony years or decades earlier are

adjudged in hindsight to have conveyed a purpose of

advancing religion. It is especially objectionable that the

inference of impropriety a court might draw under such

circumstances can forever taint future displays in that

jurisdiction, regardless of changes in public officials or the

development of new secular purposes. The Establishment

Clause surely does not require such results, and indeed many

problems with the purpose test arise because it lacks a sound

connection to Establishment Clause values.

3

The Court should discard the purpose test entirely, and at

the very least clarify that an improper purpose at one time

does not taint future displays. A better approach for evaluating

government displays having both religious and secular mean-

ing is to ask whether the display is actually coercive.

ARGUMENT

I. Texas’ Monument Should Be Upheld As An

Encomium To Heritage, Similar To Other Ubiquitous,

Benign Government Tributes To Religious Roots

Texas’ Ten Commandments monument, donated by the

Fraternal Order of Eagles in 1961, is hardly unusual as a

government tribute to a heritage with religious origins.

Indeed, displaying monuments to history that also have

religious meaning has a long and rich tradition in America at

all levels of government. Without including such displays

among representations of other cultural symbols and markers,

governments would leave obvious, yawning gaps in their

historical narratives. The Establishment Clause surely does

not demand incomplete, censored or revisionist depictions of

history.

1. Many state and local government buildings have

erected Ten Commandments monuments donated by the

Fraternal Order of Eagles. As explained in more detail in the

amicus brief of Alabama and other states filed in American

Civil Liberties Union of Kentucky v. McCreary County,

Kentucky, 354 F.3d 438 (6" Cir. 2003), cert. granted, 125

S.Ct. 310 (Oct. 12, 2004) (No. 03-1693), during the 1950’s

and 1960’s, the Eagles donated thousands of such monuments

to state and local governments across the country. For

decades there have also been many non-Eagles Ten

Commandments displays on public lands around the country,

some of which have only recently been subjected to litigation.

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

4

Cir. 2004); Freethought Soc’y of Greater Philadelphia v.

Chester County, 334 F.3d 247 (3d. Cir. 2003).

The Supreme Court Chambers in the Minnesota State

Capitol has a painting depicting Moses receiving the Ten

Commandments. See Minn. Jud. Branch, Sup. Ct., Minnesota

Supreme Court, at http://www.courts.state.mn.us/documents/

ClO/otherResources/SupremeCourt.doc (last visited Dec. 6,

2004). Other pieces of art within the Minnesota State Capitol

have religious themes as well, including a painting of Saint

Anthony at Saint Anthony Falls. See Minn. State Capitol

Bldg., at http://www.minnesotabound.com/visit/Capitol/(last

visited Nov. 30, 2004). On the outside of the New York State

Supreme Court building, there are nine full-sized statues,

including Moses, Confucius, and Solon. A figure of

Muhammad was included until the early 1950’s when it was

removed at the request of Muslim nations. Francis Morrone,

Statues and Civic Memory, City J. (Summer 1999), available

at http://www.cityjournal.org/html/9_3_urbanities_statues.

html (last visited Nov. 30, 2004).

2. State and local governments also display monuments to

culture that have a wide variety of other religious origins and

references. Outside of Hawaii’s State Capitol stands a statue

of Father Damien deVeuster, a Belgian Catholic Priest who

was the martyr of Kalawao, Moloka’i and who devoted his

life to helping sufferers of Hansen’s Disease (leprosy) before

succumbing to the disease himself. See Hawaii.com, Hawaii

State Capitol Building, at http://www.hawaii.com/visit/details

.php?id=329&type=attractions (last visited Nov. 30, 2004).

Honolulu’s publicly owned Foster Botanical Garden includes

a sculptvre of a sitting Buddha. See Honolulu, Foster

Botanical Garden Master Plan, at http:// www.co.honolulu.hi.

us/parks/facility/foster/index|.htm (last visited Nov. 30,

2004). In Alaska, the Juneau Municipal Building features a

mural based on the Tlingit religion’s legend of the creation of

5

mankind. See TravelJuneau.com, Juneau Downtown Area

Map, at http://www.traveljuneau.com/discover/maps/

downtown/downloads/juneau.pdf (last visited Nov. 30, 2004);

Pat Costello, Photo of the Mural on City Hall, Sept. 15, 2000,

at http://www.juneauphotos.com/index.asp?r=605 (last visited

Nov. 30, 2004).

Throughout California many crosses stand on public land.

Sean Scully, Ventura Faces Suit over Park's Cross, Wash.

Times, Apr. 14, 2003, available at http://www. papillonsartpa

lace.com/venrtura.htm (last visited Nov. 30, 2004). In recent

years federal courts have ordered some to be removed, but

many remain. /d. In Oroville, California, a Chinese Temple

once used for worship sits in a city garden and is a California

Registered Historical Landmark. See Oroville Parks and

Trees Dep’t, Oroville Chinese Temple, at http://www.cityofor

oville.org/Parks/ChineseTempleHistory.html (last visited

Nov. 30, 2004). Golden Gate Park features a statue of

Buddha in its Japanese Tea Garden. See Inetours.com, Tour

San Francisco, The Japanese Tea Garden in San Francisco's

Golden Gate Park, at http://www.inetours.com/Pages/SNFbrh

ds/Japanese_Tea_Garden.html (last visited Nov. 30, 2004).

A Salt Lake City park, the Gilgal Garden, features many

sculptures and stoneworks that reflect Church of Jesus Christ

of the Latter Day Saints themes. Gilgal Garden, History of

Gilgal Garden, at http://www.mediadivide.org/gilgal/history.

html (last visited Dec. 7, 2004). In St. Louis’ Forest Park

stands both a Jewish First American Settlement

Commemorative Monument and a St. Francis of Assisi Statue

in memory of Harry Turner, one of the first automobile

dealers in St. Louis. See St. Louis, Dep’t of Parks, Recreation

and Forestry, St. Louis City Parks Ornamental Structures and

Fountains, at http://stlouis. missouri.org/citygov/parks/parks_

div/facilities/ fountains.html (last visited Nov. 30, 2004). The

Pennsylvania Capitol rotunda contains the treasured medallion

6

“Religion,” and in the South Dakota Supreme Court, the

mural “Mercy of the Law” depicts an angel guarding over the

legal process. Francisco Pio Ruggiero, State Capitols:

Temples of Sovereignty 140, 532 (2002).

3. As detailed in the amicus brief filed by Alabama and

other states in the McCreary County case, several federal

government buildings also display representations of the Ten

Commandments, including some at the Supreme Court itself.

Another notable federal courthouse depiction of Moses’s role

in American law is at the E. Barrett Prettyman courthouse in

Washington D.C., where four large sculptures of historically

significant lawgivers, including Moses, sit behind the bench

in one of the courtrooms. See U.S. Dist. Ct., Dist. of

Columbia, History of E. Barrett Prettyman Federal

Courthouse, at http://www.ded.us __ courts.gov/court-

history.html (last visited Nov. 30, 2004). And, ironically,

located over the bench in the very courtroom where a federal

district court heard arguments concerning a proposed Indiana

Statehouse lawn Ten Commandments monument is a mural

depicting, among other things, a figure holding the Ten

Commandments. See Sara Evans Barker, The Rule of Law,

Traces of Ind. and Midwestern Hist., Summer 2003, at 4; Jnd.

Civil Liberties Union v. O'Bannon, 110 F. Supp. 2d 842, 851-

52 (S.D. Ind. 2000).

Federal buildings also display other religious symbols as

tributes to our country’s heritage. In the U.S. Capitol, for

example, there is a stained glass window depicting George

Washington praying. See Human Events Online, Exclusive

Photo Fssay: God in the Temples of Government, at

_ http://www.humaneventsonline.com/article.php?id=2441 (last

visited Nov. 30, 2004). The Capitol’s artwork includes

paintings of De Soto’s discovery of the Mississippi River and

his burial, both of which display religious symbols such as the

crucifix. See Architect of the Capitol, Works of Art in the

Capitol Complex, at http://www.aoc.gov/cc/cc_art.htm (last

—_—

7

visited November 30, 2004). The Capitol also displays statues

of Jacques Marquette, a Jesuit missionary from _ the

seventeenth century, Brigham Young, president of the

Mormon Church during its western colonization, and Thomas

Starr King, a nineteenth century Unitarian minister. See id. at

http://www.aoc.gov/cc/art/nsh/index.cfm. Relief portraits of

Moses, medieval pope Gregory IX, and Jewish theologian

Maimonides are included among the Capitol’s twenty-three

portraits of lawgivers who are considered to have established

the principles that underlie American law. See id. at

http://www.aoc.gov/cc/art/lawgivers/lawgivers.cfm. And the

Library of Congress displays religious paintings and Biblical

quotations on its walls. See Human Events Online, at

http://www.humaneventsonline.com/article.php?id=244 1.

During the Great Depression the Public Works

Administration built or repaired numerous historical sites

reflecting religious themes. For example, the PWA restored a

church and other buildings in Old Economy Village, a

religious communal society founded by the Harmony Society

in Pennsylvania, and today the village is a national historic

landmark. See C.W. Short & R. Stanley-Brown, Public

Buildings, Architecture Under the Public Works

Administration 1933 to 1939 141 (1939); Old Economy

Village, at http://www.oldeconomyvillage.org (last visited

Nov. 30, 2004). The PWA also restored a mission church at

the Tumacacori National Monument. Short & Stanley-

Brown, supra, at 152. These projects and sites have served

the important secular purpose of inculcating new generations

with American history, not the purpose of inculcating religion.

7 * oa

As it ponders the permissibility of the Ten Commandments

displays in this case and in McCreary County, the Court

should consider the important American tradition of erecting

monuments to our history, including the role of religion. This

8

tradition quite obviously does not seek to advance religion; it

seeks instead to preserve and tell the stories of who we are as

a people and the foundations of our social and political

cultures. It serves an important secular purpose for govern-

ment to convey this historical perspective to all citizens,

regardless of belief. And the Ten Commandments are most

certainly a part of our heritage: “[S]uch are the Hebraic roots

of American order, whether or not the reader of this book

wholly accepts the Law and the prophets.” Russell Kirk, The

Roots of American Order 38 (1974).

II. Establishment Clause Inquiry Into Government

Purpose Is Unfair and Unworkable

A. The secular purpose test leads to unfair results,

particularly when past improper purposes taint

new displays having legitimate secular purposes

One reason that Texas’ Ten Commandments monument

survives scrutiny under the endorsement test is that the record

contains no evidence demonstrating that Texas officials ac-

cepted the monument with religious objectives in mind. (Pet.

App. 9-12) That history, combined with the well-established

understanding that the Ten Commandments have had a

dramatic impact on Western (in particular American) secular

political culture, means that the Texas display survives

scrutiny under the “secular purpose” inquiry of the endorse-

ment test. (See id.) An identical Fraternal Order of Eagles

monument on Colorado’s State Capitol grounds also has a

legitimate secular purpose. State v. Freedom From Religion

Found., Inc., 898 P.2d 1013, 1023-24 (Colo. 1995).

Other local governments displaying identical Ten Com-

mandments monuments donated by the Eagles have not been

as fortunate with respect to their historical records. In Books

v. City of Elkhart, 235 F.3d 292, 303-04 (7th Cir. 2000), for

example, the court determined that Elkhart had accepted the

9

Eagles monument in 1958 with an improper religious purpose

in mind because clergy had spoken at the dedication

ceremony. The court also ruled that the Elkhart City Council’s

effort to purify its purpose by passing a resolution declaring

that the monument should continue to be displayed on city

grounds for secular historical reasons was a sham and could

not overcome the improper objectives of public officials long

passed from the scene. /d. at 304.

Thus, with respect to identical Ten Commandments

monuments, two governments are permitted to display their

monuments, while a third is prohibited from doing so, all

because of what some public officials and clergy said forty or

more years ago. The McCreary County case further compli-

cates matters by not permitting public officials to overcome

past improper objectives with statements of purely secular

purposes concerning a mew Ten Commandments display

adorned with additional historical documents and symbols.

ACLU of Ky. v. McCreary County, Ky., 354 F.3d 438 (6" Cir.

2003), cert. granted, 125 S.Ct. 310 (Oct. 12, 2004) (No. 03-

1693).

Indiana’s experience adds yet another dimension to the

unfairness produced by the purpose test. From 1958 until

1991, when a vandal spray-painted and then toppled it, an

Eagles Ten Commandments monument stood without

challenge on the Indiana Statehouse lawn—a lawn that also

features twelve other historical markers and monuments, as

well as seven dedicated trees. Several years after this

vandalism, several Indiana limestone companies donated a

replacement monument that featured not only the Ten

Commandments, but also the Bill of Rights and the Preamble

to the Indiana Constitution. /nd. Civil Liberties Union v.

O'Bannon, 259 F.3d 766, 771 (7" Cir. 2001), cert. denied,

534 U.S. 1162 (2002).

10

In a March 14, 2000, press release explaining why he was

accepting the replacement monument for the Statehouse lawn,

the late Indiana Governor Frank O’Bannon remarked that the

new monument was intended to “be an integral part of the

Statehouse setting, which honors the history of our state and

nation.” /d.' However, the Governor also stated that the

vandalized monument donated by the Eagles had “stood on

the Statehouse lawn as a reminder of some of our nation’s

core values.” /d. The district court and the Seventh Circuit

inferred that the Governor’s “core values” characterization of

the prior monument related to religious core values (as

opposed to the core values of liberty and law), and

furthermore inferred that the Governor had “primarily” a

religious purpose in mind, rather than his stated secular

purpose, when he accepted the new monument. /d. at 772;

Ind. Civil Liberties Union v. O’Bannon, 110 F. Supp. 2d 842,

851-52 (S.D. Ind. 2000), aff'd, 259 F.3d 766, 773 (7" Cir.

2001).

Thus, assuming the Court upholds, as it should, Texas’

Eagles monument, but also affirms, as it should not, the Sixth

Circuit’s use of the secular purpose rule to hold the McCreary

County display irremediably tainted, Indiana may be frus-

trated in erecting any new Ten Commandments display just

because nearly five years ago a twice-succeeded Governor

referred to a prior display—identical to Texas’—as a

statement of “core values.” Adding insult to injury is the fact

that the Governor had occasion to accept the new monument

only because one of the plaintiffs in that case vandalized the

State’s prior Ten Commandments display. As with the

experience of McCreary County, even the possibility of such a

' For the full text of Governor O’Bannon’s press release, see

Petition for Writ of Certiorari filed Dec. 28, 2001, in

O'Bannon v. Indiana Civil Liberties Union, No. 01-966, 71a-

74a, cert. denied, 534 U.S. 1162 (2002).

11

result demonstrates the unfair and absurd outcomes that can

follow from the purpose test.

Nor is this problem limited to cases involving Ten

Commandments monuments. For example, in Eugene Sand

& Gravel, Inc. v. City of Eugene, 558 P.2d 338, 349 (Or.

1976), the court permitted a city park to display a large cross

because, notwithstanding any earlier improper purposes, a

new secular purpose had emerged to justify its display. But in

Gonzalez v. North Township of Lake County, Indiana, 4 F.3d

1412, 1414-15, 1421 (7" Cir. 1993), the court rejected a city

park’s claim that it was displaying, as a war memorial, a

crucifix donated by the Knights of Columbus because a

Knights spokesperson (not a public official) had referred to

the cross in religious terms twenty-eight years earlier.

Because of the purpose test, once again, one government may

display a religious symbol for secular reasons, while another

may not.

B. The purpose test has shifted over time

One failure of the purpose test has been its inconsistent

application. In many cases the Court has been highly

deferential to government defendants’ stated secular purposes,

while in others it has been far more skeptical of those

assertions. The result is confusion about exactly what scrutiny

lower courts should undertake when applying the purpose test.

Compare O'Bannon, 259 F.3d at 771-72 (rejecting the

Governor’s asserted secular purpose because the court

doubted whether it was the primary purpose), with Kreisner v.

San Diego, 1 F.3d 775, 782 (9" Cir. 1993) (deferring to the

city because it claimed at least one secular purpose). Unless

the Court scraps or modifies the purpose test here or in

McCreary County, this inconsistency, and the uncertainty for

state and local governments that it creates, will likely persist.

12

1. To begin, in Lemon v. Kurtzman, 403 U.S. 602, 613

(1971), the Court accepted the government’s asserted secular

purposes because such claims must “be accorded appropriate

deference.” In Lynch v. Donnelly, the Court observed that it

“has invalidated legislation or governmental action on the

ground that a secular purpose was lacking, but only when it

has concluded there was no question that the statute or activity

was motivated wholly by religious considerations.” 465 U.S.

668, 680 (1984) (citations omitted) (emphasis added). After

observing that the “narrow question is whether there is a

secular purpose for Pawtucket’s display of the creche,” the

Court took Pawtucket at its word that it sponsored the display

to “celeprate the Holiday and to depict the origins of that

Holiday.” Jd. at 681 (emphasis added). Notably, the Court

held “only that Pawtucket has a secular purpose for its

display, which is all that Lemon requires” and specifically

disclaimed Pawtucket’s need of an exclusively secular

purpose. /d. at 681 n.6.

The Court has reaffirmed this deferential approach. In

Bowen v. Kendrick, 487 U.S. 589, 603-04 (1988), the Court

sided with the government because, even if the Adolescent

Family Life Act “was motivated in part by improper concerns,

the parts of the statute to which appellees object were also

motivated by other, entirely legitimate secular concerns.”

Similarly, in Board of Education of Westside Community

Schools v. Mergens, 496 U.S. 226, 249 (1990), a plurality of

the Court agreed that the Equal Access Act’s religious activity

protections were justified by the secular purpose of preventing

speech discrimination notwithstanding that some legislators

may have wanted to protect religious speech in particular:

“[W]hat is relevant is the leg.slative purpose of the statute,

not the possibly religious motives of the legislators who

enacted the law.” See also Wallace v. Jaffree, 472 U.S. 38, 56

13

(1985) (observing that even “a statute that is motivated in part

by a religious purpose” may be valid).

This line of cases yields a relatively light standard where-

by “the Court is “reluctan[t] to attribute unconstitutional

motives to the states, particularly when a plausible secular

purpose for the state’s program may be discerned... .”

Mueller v. Allen, 463 U.S. 388, 394-95 (1983). Yet this has

not been the operative consideration in all cases.

2. The Court has at times undertaken a more searching

analysis and attempted to look behind the plausible or stated

purposes of government action to discern the government’s

supposed actual purposes. The Court has also employed a

comparative test whereby it attempts to discern the primary

purpose for governmental action supported by both religious

and secular purposes.

In Stone v. Graham, 449 U.S. 39, 41 (1980), for example,

the Court rejected the asserted secular purpose behind posting

the Ten Commandments on public school classroom walls,

saying that the “pre-eminent purpose for posting the Ten

Commandments on schoolroom walls is plainly religious in

nature.” The Court arrived at this conclusion notwithstanding

its acknowledgement that the Ten Commandments may be

part of a public school curriculum for multiple secular

reasons. It simply chose not to defer to the government’s

asserted secular purpose.

> Widmar v. Vincent, 454 U.S. 263 (1981), is instructive as

well. The Court held that providing religious groups with

access to a state university’s open forum would be permissible

because doing so “would have a secular purpose.” /d. at 271

& n.10. This implies that any improper purposes that

administrators might also have would be irrelevant.

14

Similarly, in Edwards v. Aguillard, 482 U.S. 578, 594

(1987), the Court accepted the notion that states could require

public schools to teach creation science under the pure secular

purpose of promoting skeptical inquiry. Nonetheless, the

Court second-guessed Louisiana’s stated secular purpose for

its creation-science law because. based on a few comments by

the legislative sponsor, it deemed the Act’s “primary purpose”

to be endorsement of religious laws. /d. at 592-94. Thus,

notwithstanding the availability of a plausible secular purpose,

the Court chose to look behind the statute to discern the

“primary” purpose. The Court even listed in detail possible

sources of information for discerning the primary purpose

behind assertedly secular legislation in future cases. /d. at

593-94. This approach evinces a skeptical attitude that is far

different from the deferential approach of Lemon, Lynch,

Bowen, Mergens and Mueller.

Finally, in Santa Fe Independent School District v. Doe,

530 U.S. 290 (2000), the Court rejected a public school’s

stated secular purpose for permitting a student message or

invocation at football games. The school policy declared that

the purpose was to solemnize the event, and the Court

acknowledged that this purpose was “entitled to some

deference.” /d. at 306, 308. Nonetheless, the Court ultimately

concluded that, because prayer is the most obvious way to

solemnize an event, because the policy specifically permitted

an “invocation,” and because the school had a prior policy of

permitting student-led prayer at football games, the “specific”

purpose of the policy must have been to preserve a religious

practice. /d. at 309. Particularly significant in Santa Fe was

the Court’s assertion that these factors made it “reasonable” to

infer that a religious purpose underlay the policy. /d.

Thus, while Mueller ruled that the Court should be

reluctant to second-guess a plausible secular purpose, Santa

Fe ruled that the Court could do so as long as it was merely

eae

15

“reasonable” to infer that a religious purpose may have

existed. As professor Steven Smith has written, “[iJt is far

from clear how a court can be expected to distinguish sham

purposes from sincere ones when it is also required to ‘defer

to . . . stated intent.”” Steven D. Smith, Symbols, Perceptions

and Doctrinal Illusions: Establishment Neutrality and the

“No Endorsement” Test, 86 Mich. L. Rev. 266, 286 (1987)

(quoting Wallace, 472 U.S. at 74-75 (O’Connor, J.,

concurring)).

3. Even the “taint” doctrine, which leads to the unfair

results recounted in Part II.A, supra, is part of the secular

purpose rule’s problematic metamorphosis.

As mentioned, the Court in Santa Fe ascribed religious

purposes to an assertedly secular school policy in part because

the policy at one time had provided for student-initiated

prayer. Santa Fe, 530 U.S. at 309. But obsessive focus on

long-ago stated purposes and the history surrounding prior

displays deviates substantially from the Court’s earlier

understanding of the purpose test. In particular, in McGowan

v. Maryland, 366 U.S. 420, 444-47 (1961), the Court upheld

Maryland’s Sunday closing laws because, regardless of the

religious origins of such laws, a secular justification had

emerged over time. /d. See also Elk Grove Unified Sch. Dist.

v. Newdow, 124 S.Ct. 2301, 2325 (2004) (O’Connor, J.,

concurring) (stating that even if some legislators voted to add

“under God” to the Pledge of Allegiance out of religious

motivations, “[a]ny religious freight the words may have been

meant to carry originally has long since been lost.”’).

If the Court chooses to preserve the purpose test, it should

make clear that the McGowan approach applies and that prior

improper religious purposes do not taint present secular

purposes justifying the same activity, particularly where new

government officials are now in place. Limiting the secular

purpose test to the question of whether the government action

16

could be justified by any reasonable secular purpose would

accomplish that objective. See Lynch, 465 U.S. at 681 n.6.

So would clarifying that government officials may reconsti-

tute their purposes over time. Only through these modifica-

tions can the Court preserve the purpose test and also provide

for equal justice across jurisdictions.

C. The purpose test’s uneven application stems from

its inherent unsuitability as a means of detecting

“establishments” of religion

The Court’s varying applications of the purpose test

reflect the extraordinary difficulty of applying the test and,

more to the point, the test’s vulnerability to manipulation

(even if unintentional) and its inherent inability to provide

equal justice over time. These are systemic problems that

follow from the lack of a well-understood connection with the

values underlying the Establishment Clause.

i, the most obvious difficulty in applying the secular

purpose test (as understood in, e.g., Stone, Edwards, and

Santa Fe) is to divine the supposed actual or prevailing pur-

pose of a government official or body. Judges applying the

purpose test probe deep into a government body’s political

culture, legislative history, interpretations and statements

regarding the law, historical context, and even the fit between

the act and its secular ends. The objective is to unravel an

infinite variety of complementary, intertwined purposes and

determine not just what they are, but which among them is

“ M ”

primary.

That judges undertake to determine whether the articulated

secular purposes of public officials (who are equally under

oath to uphold the Constitution) are nothing but a “sham”

implies institutional distrust and deeply offends comity.

Edwards, 482 U.S. at 586-87; see also id. at 610 (Scalia, J.,

dissenting) (“[T]he Court today holds . . . that the members of

17

the Louisiana Legislature knowingly violated their oaths and

then lied about it.”). That courts often must grope for the

actual purposes of entire legislative bodies and not just

individual government officials turns the implausible into the

futile. /d. at 637 (Scalia, J. dissenting) (“To look for the sole

purpose of even a single legislator is probably to look for

something that does not exist.”). It is inherently unjust for

constitutionality to turn on a single legislator’s (or

government executive’s) ill-conceived comment in support of

a law or a display, as if the resulting law were the “fruit of a

forbidden tree.” /d. at 638.

A plurality of the Court may have backed away from such

an incredulous approach in Mergens, where the Court upheld

the Equal Access Act notwithstanding the religious

motivations of some who voted for it. Mergens, 496 U.S. at

249. But even the Mergens plurality ultimately reasoned that

having a religious motivation is distinguishable from having a

purpose of advancing religion. /d.; but see, e.g., Lynch, 465

U.S. at 680 (articulating the purpose test in terms of

motivations). The supposed distinction is that, while the

Establishment Clause prohibits government from advancing

religion, it does not enjoin government officials from pursuing

secular policies from religious motives. See Edwards, 482

U.S. at 614-15 (Scalia, J., dissenting) (contrasting cases that

speak of activities “endorsing,” “advancing,” or “establishing”

religion from secular policies pursued for religious motives,

such as providing for the homeless).

Requiring courts to find a blurry line between the two is

yet another impediment to principled, consistent adjudication.

Indeed, if courts fail to draw the motive/purpose distinction

accurately, the purpose test may ultimately result in judicial

decisions that effectively exclude the religious from political

participation. See id. Regardless, the purpose test is laden

with entirely subjective inquiries, making it highly susceptible

to unequal applications.

18

2. The impossibility of applying the secular purpose test

with objectivity and consistency rests in part on its question-

able jurisprudential rationale. “It is . . . far from an inevitable

reading of the Establishment Clause that it forbids all

governmental action intended to advance religion; and if not

inevitable, any reading with such untoward consequences

must be wrong.” Edwards, 482 U.S. at 639 (Scalia, J.,

dissenting). The endorsement test as a whole has been derived

from the notion that the Establishment Clause exists in part to

prevent religious minorities from feeling like “outsiders.”

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

implicit theory for including a secular purpose component

appears to be that, regardless of the effect of government

action, the mere existence of a religious purpose alone can

somehow exclude or create outsiders.

Even aside from the conceptual riddle of how a religious

purpose can exclude when the effect does not, the Establish-

ment Clause roots of the “outsider” premise are far from clear.

For example, Steven Smith writes that the Establishment

Clause had once been “primarily concerned with maintaining

proper institutional relations.” Smith, Symbols, supra at 299.

He describes the “outsider” premise as reconceiving the

Establishment Clause as a source of individual rights rather

than as a regulator of institutional relations. /d. Professor

Michael Paulsen has argued that, even if intended to advance

religion, if government action has no religiously coercive

impact, “the Establishment Clause supplies no justification for

outlawing it,” and therefore “[t]he purpose prong of Lemon

thus serve[s] no legitimate function ....” Michael Stokes

Paulsen, Lemon is Dead, 43 Case W. Res. L. Rev. 795, 803

(1993). In light of the secular purpose test’s rather shaky

jurisprudential foundation, it is no wonder that enforcement

19

varies so wildly: Courts are likely unsure what the doctrine is

ultimately trying to achieve.”

D. Historical displays with religious connotations

should be judged only as to whether they represent

actual religious coercion

Particularly because the purpose test suffers from deep

and insoluble practical problems leading to unjustified

disparate treatment of similar government displays, the Court

should, with respect to display cases at least, move toward a

standard with firmer constitutional footing and clearer criteria.

Doing so would not only result in greater equality across

jurisdictions, but it would also provide government officials

with more predictable outcomes.

In McCreary County, the amici curiae brief of Alabama

and other states proposes that, with respect to Establishment

Clause challenges to government displays, the Court should

> Nor can the secular purpose test be justified by reference to

the use of an at-least-nominally similar test in Equal

Protection cases. See, e.g., Andrew Koppelman, Secular

Purpose, 88 Va. L. Rev. 87, 118 (2002) (supporting purpose

test, but stating that “[t]he basic premises of democracy

condemn a political process in which the decisionmakers are

racist, but not a political process in which some of the

decisionmakers have religious views and allow those views to

influence their political positions”); Hal Culbertson, Note,

Religion in the Political Process: A Critique of Lemon's

Purpose Test, 1990 U. Ill. L. Rev. 915, 942 (1990) (“[{N]either

the participation of religious persons nor the use of religious

rhetoric creates a constitutional flaw in the political process.

Simply put, pure motivation analysis is not justified by

political process theory and should be abandoned in

establishment clause jurisprudence.”’).

20

discard the endorsement test entirely and consider employing

instead the coercion test proposed by Justice Kennedy in his

Allegheny opinion. Allegheny v. ACLU, 492 U.S. 573, 659-63

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

dissenting in part) (describing parameters of coercion test).

Here the amici states provide an additional rationale for

applying the coercion test to government displays.

The Court has understood the Establishment Clause to

permit government traditions having religious significance

because of its appreciation for the secular dimensions and

common acceptance that also characterize those traditions.

Marsh v. Chambers, 463 U.S. 783, 792 (1982), in particular,

ruled that legislatures may hire a chaplain to conduct

legislative prayer because Congress and state legislatures have

engaged in that practice throughout our history.

Similarly, the “common sense of the matter” permits the

Court to open its sessions with “God save the United States

and this Honorable Court” and for the currency to bear the

motto “In God We Trust.” Zorach v. Clausen, 343 U.S. 306,

312-13 (1952); see also Marsh, 463 U.S. at 792; Lynch, 465

U.S. at 693 (O’Connor, J., concurring) (stating that the

“history and ubiquity” of practices with religious significance

enables them to convey a message related to common secular

culture rather than religion). Moreover, Marsh ruled that a

government’s “tolerable acknowledgement of beliefs widely

held among the people of this country” will not offend the

Establishment Clause. Marsh, 463 U.S. at 792.

As set forth in Part I, supra, and in the amici curiae brief

of Alabama and other states in McCreary County, state and

local governments all over the country have a long and rich

tradition of displaying tributes to our religious roots and

heritage, including the Ten Commandments. For these

reasons, the coercion test can safely be used in government

display cases as a safeguard against presentations that go too

21

far. As long as the display, new or old, does not “coerce

anyone to support or participate in any religion or its

exercise,” it should be permitted under the Establishment

Clause. Allegheny, 492 U.S. at 659 (Kennedy, J., concurring

in the judgment in part and dissenting in part).

As for analyzing the display at issue here, Texas’

monument easily passes both the endorsement test and the

coercion test. It satisfies the purpose test because there is no

evidence that Texas officials had the purpose of advancing

religion when they accepted or dedicated it, and it satisfies the

effects test as a mere “passive acknowledgement” of the role

of the Ten Commandments in society and as a type of

government activity “accepted in our national heritage.” See

id. at 663 (Kennedy, J., concurring in the judgment in part and

dissenting in part). Nor, for largely the same reasons, does the

monument in any way coerce participation in religion or its

exercise—it does not even have a captive audience as in

Stone. Texas’ monument survives any plausible test the Court

may apply to it.

* * *

Our Founders created secular government and disestab-

lished religion, but their own religious learning in general, and

the Ten Commandments in particular, profoundly influenced

those Founders and ultimately the endurance of the Republic.

Texas’ Ten Commandments display—set among numerous

markers houoring the history of Texas and the Nation—

merely commemorates the profound historical influence of the

Commandments. Like nearly all government tributes to

religious heritage, it is fully consonant with the First Amend-

ment: It coerces nobody, creates no impression of religious

endorsement, and belongs to a government tradition with rich

secular significance. To enjoin government recognition of the

role of the Ten Commandments in our culture is to enjoin an

accurate portrayal of the very wellsprings of our history.

22

CONCLUSION

The Court should affirm the decision below.

Respectfully submitted,

Office of the Indiana STEVE CARTER

Attorney General Attorney General

IGC South, Fifth Floor THOMAS M. FISHER*

302 West Washington Street Special Counsel

Indianapolis, IN 46204 REBECCA WALKER

(317) 232-6201 Deputy Attorney General

*Counsel of Record Counsel for Amici States

Dated: December 8, 2004

(Additional Counsel Listed on Inside Cover)