Amicus Curiae Brief — Van Orden v. Perry

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a

No. 03-1500

SO __

IN THE

Supreme Court of the United States

THOMAS VAN ORDEN,

Petitioner,

2

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 HONORABLE JANET NAPOLITANO,

GOVERNOR OF THE STATE OF ARIZONA,

THE HONORABLE JAN BREWER,

SECRETARY OF STATE OF THE STATE OF ARIZONA,

THE HONORABLE JAMES WEIERS,

SPEAKER OF THE HOUSE OF REPRESENTATIVES,

THE HONORABLE KEN BENNETT,

PRESIDENT OF THE SENATE, AND

36 OTHER MEMBERS OF THE FORTY-SEVENTH

LEGISLATURE OF THE STATE OF ARIZONA

IN SUPPORT OF RESPONDENTS

(Amici Legislators Are Individually Listed On The Inside Cover)

LEN L. MUNSIL

Counsel of Record

CATHI W. HERROD

PETER A. GENTALA

THE CENTER FOR ARIZONA POLICY

11000 N. Scottsdale Rd., Ste. 120

Scottsdale, Arizona 85254

(480) 922-3101

Counsel for Amici Curiae

Sen. Timothy Bee,

Majority Leader

Sen. Linda Aguirre,

Minority Leader

Rep. Stephen Tully,

Majority Leader

Rep. Gary Pierce.

Majority Whip

Rep. Pete Rios.

Minority Whip

Rep. John Allen

Sen. Mark Anderson

Rep. Rav Barnes

Rep. Andy Biggs

Rep. Jack Brown

Rep. Judy Burges

Rep. Cheryl Chase

Sen. Jake Flake

Rep. Pamela Gorman

Sen. Ron Gould

Rep. Chuck Gray

Sen. Linda Gray

Sen. Jack Harper

Sen. John Huppenthal

Sen. Karen Johnson

Rep. Laura Knaperek

Sen. Dean Martin

Rep. Marian McClure

Rep. John McComish

Rep. Rick Murphy

Rep. John Nelson

Rep. Warde Nichols

Rep. Doug Quelland

Rep. Michele Reagan

Rep. Bob Robson

Rep. Colette Rosati

Rep. Bob Stump

Rep. David Burnell Smith

Sen. Thayer Verschoor

Rep. Jerry Weiers

Rep. Steve Yarbrough

i

TABLE OF CONTENTS

III scoteictneneseocesonsnmrensinennsevesanevcoseeuee ii

EV Ree b OF ARZICT CURIA, .....0cccccecsscecevssecscvescevscoccsesees l

SUMMARY OF THE ARGUMENT..............:ccsscsssessssseeeeeees 2

IIIT shiaiueiiilideneisssonimncincdensnensnensnnincernennsnsupesenanceaneeneues 3

I. THROUGHOUT ITS HISTORY, ARIZONA HAS

CONSISTENTLY RECOGNIZED THE

IMPORTANCE OF RELIGIOUS FAITH TO ITS

Ee 3

A. Arizona Acknowledges Religious Faith In Its

Founding Documents And In Its Symbolism............. 4

B. Arizona Acknowledges Religious Faith With Many

Monuments And Displays At The State Capitol

Complex, Including Its Ten Commandments

ETT ARE 5

c. Arizona Continues To Commemorate The Religious

Faith Of Its Citizens To This Day.................:sseeeeeeees 6

Il. THIS COURT SHOULD AFFIRM THE FIFTH

CIRCUIT AND ESCHEW RIGID STANDARDS

THAT MILITATE AGAINST THE ROLE OF

RELIGION IN A PLURALISTIC SOCIETY ........... 8

Il. PERSONAL DISAGREEMENT IS NOT

CONSTITUTIONAL INJURY .........:ccscesseessseeeeees 12

BINED vccrnecennsuscesessesnseenseneteenssneecerssnaenteemvessoousrecsone 13

TABLE OF AUTHORITIES

Cases Page

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

ED Ss Be ertesintescensinnmnasecsinnianiiioniviniaanns 8

Bd. of Regents of Univ. of Wis. Sys. v. Southworth,

rs ee ee ictcnccsnintensininnnnssiivnisimiiiiiisaiainnieiianin 12

Bowen v. Kendrick, 487 U.S. 589 (1988).........:cccseeeee0 8

Capitol Square Review and Advisory Bd. v. Pinette,

Fe Ga PR Ee iericsncnintiastinnisiecnintisintiinaanaiainiatn 10

County of Allegheny v. ACLU,

A ak Be Ce cicietetentcciicctensantsinnniininninnsimianie 8, 11

Edwards v. Aguillard, 482 U.S. 578 (1987).........:.00008: 8

Elk Grove Unified Sch. Dist. v. Newdow,

Be he GR, Bae Ce rcccerincncnentsetenmtmsntncssnciintit 5, 10-12

Freethought Soc’y of Greater Philadelphia

v. Chester County, 334 F.3d 247 (3d Cir. 2003)......... 11

Grayned v. City of Rockford,

GES US. BEG, BEB CBG TE cccecenceserccersessescscencsnscnssenscesssen 9

Ind. Civil Liberties Union v. O’Bannon,

SSD F.36 FEB (7Gs Cit. TIDE). ncccrcccrcccsccccccccccescosccesccoosoes 9

iii

Kreisner v. San Diego, 1 F.3d 775 (9th Cir. 1993)........ 9

Lemon v. Kurtzman, 403 U.S. 602 (1971).........::ccccceee 8

Lynch v. Donnelly, 465 U.S. 668 (1984).............004 8, 11

Mueller v. Allen, 463 U.S. 388 (1983) .........ccccsceeeeeeeeee 8

Rust v. Sullivan, 500 U.S. 175 (1991) .........ccccesseeeeeeees 12

Santa Fe Independent Sch. Dist. v. Doe,

es Se I iiininiinitctaicisinssianntiinininimanianeinisnnens 8

Stone v. Graham, 449 U.S. 39 (1980) ........cccccssseeeeeees 8

Valley Forge Christian College

v. Americans United For Separation

Of Church And State, Inc..,

454 U.S. 464, 485-86 (1982).........cccccscsseereeeesee: ceeeees 12

Van Orden v. Perry,

SR A Fest [Le A.) Se 8,9, 11, 12

Wallace v. Jaffree, 472 U.S. 38 (1985) ........ccccceeeeees 8,9

Zorach v. Clauson, 343 U.S. 306 (1952) ............cceeeeeeee 4

Zelman v. Simmons-Harris, 536 U.S. 639 (2002)....... 10

iV

Constitutional Provisions

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

State Constitutional Provisions

ASE I eee Ree Rano 2,4

State Laws

fF RO RE fF rere 5

Other Authorities

Ariz. State Library, Archives and Pub. Records, Dressing Up

the Capitol, at http://azcapitol.lib.az.us/capitol_dressing.htm

(last visited O1/24/05)......ssssssssssscsssssesssseessssssveeseesssee 5,6

Ariz. State Library, Archives and Pub. Records Museum

Div., Wesley Bolin Memorial Plaza: Memorial Descriptions

1 (2001) (on file with the Arizona State Library)

sai tee a hake a a eli 5, 6, 13

Brief of Amici Curiae of the States of Indiana,

et al., Van Orden v. Perry (No. 03-1500) .........:0:++++. 1,9

Brief of Petitioner,

Van Orden v. Perry (No. 03-1500) .0.........ccceseeeeeeeeeees 10

Hari Nam Singh, Balbir Singh Sodhi Memorial Dedication

September 14, 2003 in Mesa, Arizona, USA, at

http://healingsource.com/sodhi/sept- 14-

2003/gallery/pages/med/100_med.htm]

Ie i crtnicntnttncscennciintteiasnceninciccnsinnennneten 7

Laurie Goodstein and Tamar Lewin, A Nation Challenged:

Violence And Harassment: Victims Of Mistaken Identity,

Sikhs Pay A Price For Turbans, New York Times, Septem-

ae Ee Bas CE cenncencisinnscntnnrenimnnnatnerninnnsiideiins 7

Lois Romano, In 9/1] Events, Mixture of Pain And Patriot-

ism; Disparate U.S. Ceremonies Have a Common Thread,

Washington Post, August 26, 2002, at AO1 .................. 7

Michael Clancy, ACLU Seeks Religion-Free Bolin Plaza,

Arizona Republic, July 18, 2003, at Al ............ceeeeeeeee 1

Program for the Father Braun Memorial Dedication 3-5

(March 4, 2001), at http://braunsacredheartcenter.org/br5.jpg

and http://braunsacredheartcenter.org/br6.jpg and

http://braunsacredheartcenter.org/br7.jpg

GE CES Ge Pec cenccevccccstsssssesesseseneepestnocssscorenesnens 7

The Records Of The Arizona Constitutional Convention

Of 1910 (John S. Goff ed., 1991)..............sccssccsrssseeee 4

]

INTEREST OF AMICI CURIAE'

This brief of Amici Curiae is submitted on behalf of

the Honorable Janet Napolitano, Governor of the State of

Arizona, the Honorable Jan Brewer, Secretary of State of the

State of Arizona, and 38 members of the Arizona Legisla-

ture, including the Speaker of the House and President of the

Senate. Amici recognize the importance of this case and urge

this Court to affirm the ruling of the United States Court of

Appeals for the Fifth Circuit.

The State of Arizona displays a Ten Commandments

Monument on the grounds of its State Capitol Complex that

is almost identical to the one before the Court in this case.

Arizona’s monument was the subject of a threatened lawsuit

in July of 2003. See Michael Clancy, ACLU Seeks Religion-

Free Bolin Plaza, Arizona Republic, July 18, 2003, at Al.

Amici write as elected officials and as citizens to high-

light their concern with the impact this case will have on

Arizona’s Ten Commandments monument and on Arizona’s

continued ability to acknowledge the social and cultural con-

tributions of religious faith.

' The parties have consented to the filing of this brief. Their let-

ters of consent have been filed with the Clerk of this Court. None of the

counsel for the parties authored this brief in whole or in part. Counsel

for amici have applied for a grant from the Alliance Defense Fund

(“ADF”) for the preparation of this brief. ADF is a non-profit, 501(c)(3)

organization that funds legal work in the public interest. Counsel for

amici certify that they are the exclusive authors of this brief and that

ADF in no way controls the content of this brief.

? Arizona’s Attorney General, the Honorable Terry Goddard, has

already joined with the Attorneys General of 17 other states in a different

brief of amici curiae in support of Texas. See Brief of Amici Curiae of

the States of Indiana, et al., Van Orden v. Texas (No. 03-1500).

2

SUMMARY OF THE ARGUMENT

This case is an historic opportunity for this Court to

reaffirm the ability of states to accommodate and

acknowledge religion with public displays. The Texas Ten

Commandments monument is a classic example of such

permissible government acknowledgment of religion.

For its part, Arizona has an unbroken history of ac-

knowledging that religion is important both to its form of

government and to its citizens. Arizona’s succinct Preamble

to its Constitution declares that the people of Arizona are

“grateful to Almighty God for [their] liberties.” Ariz. Const.

Preamble. Arizona’s State Seal and State Anthem acknowl-

edge God’s blessing and presence. The decorations, art,

Statues, and memorials at the State Capitol Complex are

filled with references to religion. Acknowledging religion’s

important place in culture and society is a practice Arizona

continues to the present. The recently erected memorials to

Father Albert Braun and slain Arizonan Balbir Singh Sodhi

are examples of this continuing practice.

The Fifth Circuit was right to uphold the constitution-

ality of the Texas Ten Commandments monument because

Texas has a valid secular purpose for the monument and be-

cause the monument is not an impermissible state endorse-

ment of religion. The purpose inquiry has, at times, de-

volved into a scrupulous investigation for any semblance of

religious purpose by the government. In order to avoid in-

consistent and unfair results, this Court should reaffirm its

purpose prong standards from Lemon v. Kurtzman and Lynch

v. Donnelly: courts should generally defer to official state-

ments of secular purpose and the government need only pre-

sent a single secular purpose to pass constitutional muster.

State endorsement is gauged with the objective stan-

dard of the reasonable observer. Endorsement analysis is

rendered an absurdity if the observer is deemed to possess

selective knowledge or attributed a myopic focus on reli-

3

gious monuments to the exclusion of other monuments of

cultural significance. Moreover, no reasonable observer

looking at a state capitol grounds filled with monuments

would perceive unique state endorsement of a single reli-

gious display simply because it is located at the seat of gov-

ernment.

In religious display cases, the age of the display in

question is often part of the endorsement analysis. Indeed,

the age of the Texas Ten Commandments monument negates

the possibility that the reasonable observer would perceive it

as an endorsement of a particular religion. But the First

Amendment was not meant to be a “grandfather clause” for

aged monuments. Newer monuments, like Arizona’s monu-

ment to Father Albert Braun, erected on the grounds of the

Capitol Complex in 2001, do not impermissibly carry the

government’s endorsement when they are one of many dis-

plays commemorating a diverse culture.

Finally, Petitioner’s challenge to the Texas monument

smacks of a heckler’s veto and utterly lacks constitutional

injury. This Court should decline to read into the Establish-

ment Clause a right to suppress particular-manifestations of

our culture based on mere personal disagreement. The First

Amendment does not confer a right to selectively censor re-

ligious monuments.

ARGUMENT

I. THROUGHOUT ITS HISTORY, ARIZONA HAS

CONSISTENTLY RECOGNIZED THE IMPOR-

TANCE OF RELIGIOUS FAITH TO ITS CITIZENS

Like Texas, the people of Arizona, by the decision of

their elected officials, display a Ten Commandments monu-

ment on the grounds of their State Capitol. Arizona’s Ten

Commandments monument is one of the many ways the

State acknowledges the role of religious faith in the lives of

its citizens.

4

A. Arizona Acknowledges Religious Faith In Its

Founding Documents And In Its Symbolism

Religion has always been a central part of Arizon*’s

government. Arizona is an example of the truth of the

maxim voiced by Justice Douglas, “We are a religious peo-

ple whose institutions presuppose a Supreme Being.”

Zorach v. Clauson, 343 U.S. 306, 313 (1952). Arizona’s

founders chose to begin its Constitution with the words,

“We, the people of Arizona, grateful to Almighty God for

our liberties, do ordain this Constitution.” Ariz. Const. Pre-

amble. The delegates to the Arizona Constiiutional Conven-

tion in 1910 appointed a chaplain, the Reverend Seaborn

Crutchfield, to open each meeting of the Convention in

prayer. On the second day of the Convention Rev. Crutch-

field offered this prayer:

Oh, Lord! We come before thee, the members of

this convention, in the attitude of prayer, and we

ask Thy blessings upon each and every member

of this convention. ... We pray thee, Oh Lord,

that this body of men, the representatives of the

people of Arizona, may frame such a constitution

as will meet the approval of every citizen and

that it may grant unto Arizona statehvod, and

place it among the grand galaxy of states in these

United States... . These blessings we would ask

of Thee, in the name of Jesus Christ, Thy Son,

Amen.

The Records Of The Arizona Constitutional Conven-

tion Of 1910, 9 (John S. Goff ed., 1991) [hereinafter

Records}.

Arizona expressly acknowledges God in its official

state symbolism. The Great Seal of the State of Arizona

bears the phrase “Ditat Deus” or “God enriches.” Records,

supra at 651. Arizona’s State Anthem also acknowledges

God:

5

Come stand beside the rivers

Within our valley broad.

Stand here with heads uncovered,

In the presence of our God!

While all around about us,

The brave, unconquered band,

As guardians and landmarks,

The giant mountains stand.

1919 Ariz. Sess. Laws Ch. 28 § 1. “It is unsurprising

that a Nation founded by religious refugees and dedi-

cated to religious freedom should find references to

divinity in its symbols, songs, mottoes, and oaths.” Elk

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

2322 (2004) (O’Connor, J., concurring).

B. Arizona Acknowledges Religious Faith With

Many Monuments And Displays At The State

Capitol Complex, Including Its Ten Com-

mandments Monument

Religion is an essential part of Arizona’s story. Catho-

lic missionaries to the Native Americans formed a crucial

part of what would become Arizona’s cultural icentity. The

Arizona Capitol Complex includes a statue of one of the

most famous of these men, Father Eusebio Francisco Kino.

See Ariz. State Library, Archives and Pub. Records, Museum

Div., Wesley Bolin Memorial Plaza: Memorial Descriptions

1 (2001) (on file with the Arizona State Library) [hereinafter

Memorial Descriptions]. The role of the early missionaries,

like Father Kino, is also memonalized inside Arizona’s

Capitol building. In the 1930s the artist, Jay Datus, was

commissioned to paint a series of murals to commemorate

Arizona’s history. One of the murals entitled, “Missionary

Era in Arizona,” depicting several missionaries ministering

to Native Americans, hangs in the Arizona State Library

Reference Room. Ariz. State Library, Archives and Pub.

Records, Dressing Up the Capitol, at

http://azcapitol.lib.az.us/capitol_dressing.htm (last visited

6

01/24/05). The artist explained the painting represented “all

the brave men who suffered for their ideals and faith.” Jd.

Anzona’s State Capitol Complex contains a monument

to Armenian Martyrs, memorializing the victims of a reli-

gious pogrom in Turkey between 1915 and 1923. The

monument quotes the famous cleric of the Armenian Church,

Gregory of Narek: “Let lamentation cease, weeping be sti-

fled; to mourning make an end; let darkness turn to light.”

The back of the monument contains the engraved names of

survivors of the violence who immigrated to Arizona. Me-

morial Descriptions, supra at 1. Another monument on the

grounds of the Anzona Capitol Complex commemorates

“the Arizonans of Jewish Faith who gave their lives in the

service of their country.” Jd. In 1984, another monument

was added honoring the memory of the Reverend Martin Lu-

ther King Jr., whose Christian faith led him to tirelessly

champion a national struggle for civi! nghts. Jd.

Anzona received its Ten Commandments monument

as a gift from the Fraternal Order of the Eagles. The monu-

ment is nearly identical to the one at issue in this case. An

inscription at the bottom of the monument reads: “Presented

To The State Of Arizona By Fraternal Order Of The Eagles

Of Arizona 1964.” See App. 1 (photograph of the monu-

ment). Like the challenged monument in this case, An-

zona’s monument is displayed in a location close to the

Capitol building and between the Capitol and the State Su-

preme Court.

C. Arizona Continues To Commemorate The Re-

ligious Faith Of Its Citizens To This Day

Arizona continues the practice of erecting public dis-

plays of religious significance. Two recently placed monu-

ments are good examples. In 2001, Arizona placed a statue

memorializing Father Albert Braun, a Franciscan priest who,

after serving as an Army chaplain in both World Wars, min-

istered in Arizona from 1949 until his death in 1983. See

7

Program for the Father Braun Memorial Dedication 3-5

(March 4, 2001), at http://braunsacredheartcenter.org/br5.jpg

and http://braunsacredheartcenter.org/br6.jpg and

http://braunsacredheartcenter.org/br7 .jpg (last visited

01/24/05). Father Braun’s memorial was dedicated in a

ceremony filled with religious significance, including an in-

vocation, benediction, blessings of his statue, and a hymn.

Id. at 11, at http://braunsacredheartcenter.org/br13-jpg (last

visited 01/24/05).

Arizona’s recent recognition of religious faith extends

beyond the Capitol grounds. On September 15, 2001, Ari-

zona and the nation were shocked when Balbir Singh Sodhi,

an Arizonan and a devout Sikh, was murdered because he

wore a turban. See Laurie Goodstein and Tamar Lewin, A

Nation Challenged: Violence And Harassment: Victims Of

Mistaken Identity, Sikhs Pay A Price For Turbans, New

York Times, September 19, 2001, at Al. The City of Mesa

remembered Mr. Sodhi by planting a tree and putting up a

plaque, which reads in part: “Sikhs believe: In one God.

That all religious paths lead to God. That all people are

equal in the eyes of God. In peace, and love for human-

kind.” The city dedicated the plaque at an event entitled the

“Embrace Diversity Memorial Event.” See Lois Romano, Jn

9/11 Events, Mixture of Pain And Patriotism; Disparate U.S.

Ceremonies Have a Common Thread, Washington Post, Au-

gust 26, 2002, at AO1; and Hari Nam Singh, Balbir Singh

Sodhi Memorial Dedication September 14, 2003 in Mesa,

Arizona, USA, at http://healingsource.com/sodhi/sept-14-

2003/gallery/pages/med/100_med.html (last visited

01/24/05).

The memorials for Father Braun and Mr. Sodhi dem-

onstrate that governments erect religious displays because

they recognize that religious faith is important to individuals

and to society at large.

8

Il. THIS COURT SHOULD AFFIRM THE FIFTH

CIRCUIT AND ESCHEW RIGID STANDARDS

THAT MILITATE AGAINST THE ROLE OF

RELIGION IN A PLURALISTIC SOCIETY

Arizona’s consistent practice of acknowledging reli-

gious faith is far from anomalous. The federal government,

to which the Establishment Clause is addressed, has ac-

knowledged and affirmed the role of religion from its very

creation. “There is an unbroken history of official acknowl-

edgment by all three branches of government of the role of

religion in American life from at least 1789.” Lynch v. Don-

nelly, 465 U.S. 668, 675 (1984).

America’s religious heritage and its modern religious

pluralism are compelling reasons for this Court to be wary of

“rigid, absolutist view[s] of the Establishment Clause.” /d.

at 678; see also County of Allegheny v. American Civil

Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573,

623 (stating the Court avoids analytical lines, “which entirely

sweep away all government recognition of the role of relig-

ion in the lives of our citizens. . . .”).

The Fifth Circuit found that Texas possesses a valid

secular purpose for displaying its Ten Commandments

monument. Van Orden v. Perry, 351 F.3d 173, 178-80 (Sth

Cir. 2003). This finding is correct because the purpose

prong of the Lemon test requires that “appropriate deference”

be accorded to the government’s stated purpose for a reli-

gious display. See Lemon v. Kurtzman, 403 U.S. 602, 613

(1971). But in the years since Lemon was decided, this

Court has applied the purpose prong both deferentially and

with unrelenting scrutiny. Compare, Mueller v. Allen, 463

U.S. 388, 394-95 (1983); Wallace v. Jaffree, 472 U.S. 38, 56

(1985); Bowen v. Kendrick, 487 U.S. 589, 603-04 (1988);

and Bd. of Educ. of Westside Community Sch. v. Mergens,

496 U.S. 226, 249 (1990); with Stone v. Graham, 449 U.S.

39, 41 (1980); Edwards v. Aguillard, 482 U.S. 578, 594

(1987); and Santa Fe Independent Sch. Dist. v. Doe, 530

; 9

U.S. 290, 309 (2000). These divergent approaches have led

to fundamentally inconsistent results in lower courts. See,

e.g., Kreisner v. San Diego, | F.3d 775, 782 (9th Cir. 1993)

(deferring to city’s stated secular purpose); and Ind. Civil

Liberties Union v. O’Bannon, 259 F.3d 766, 773 (7th Cir.

2001) (finding that state’s asserted purpose was not in fact its

“primary purpose”).’ This Court should clarify the applica-

ble standards so that government and citizens alike can dis-

cern the requirements of the First Amendment.‘

The purpose prong was never intended to root out reli-

gious references from the public square. “Were the test that

the government must have ‘exclusively secular’ objectives,

much of the conduct and legislation this Court has approved

in the past would have been invalidated.” Lynch, 465 U.S. at

681 n.6. If this Court retains the secular purpose test,° it

should clarify that the government need only provide a single

secular purpose to justify official acknowledgment of relig-

ion.

The Fifth Circuit was also correct in holding that the

Texas Ten Commandments monument did not have the ef-

fect of impermissibly advancing religion. Van Orden, 352

F.3d at 180-82. The court appropriately applied the standard

of the reasonable observer. Jd. (citing Allegheny, 492 U.S. at

595).

> As Chief Justice Rehnquist has observed, the purpose prong is

“mercurial in application.” Wallace, 472 U.S. at 108 (Rehnquist, C_J.,

dissenting).

* As this Court has recognized, unclear standards “inevitably lead

citizens to steer far wider of the unlawful zone . . . than if the boundaries

of the forbidden areas were clearly marked.” Grayned v. City of Rock-

ford, 408 U.S. 104, 108 (1972) (quoting Bagett v. Bullitt, 377 U.S. 360,

372 (1964)).

* Amici join the suggestion of the 18 amici States, including Ari-

zona, that the purpose test should be abandoned in favor of a clearer and

more objective approach. See Brief Amici Curiae of the States of Indi-

ana, et al. at 2-3; 18-19, Van Orden v. Texas (No. 03-1500).

10

The reasonable observer test is an objective inquiry;

“the reasonable observer in the endorsement inquiry must be

deemed aware of the history and context underlying a chal-

lenged program.” Zelman v. Simmons-Harris, 536 U.S. 639,

655 (2002) (citing Good News Club v. Milford Central

School, 533 U.S. 98, 119 (2001); and Capitol Square Review

and Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995)).

Justice O’Connor has recently explained why the test

is objective:

Given the dizzying religious heterogeneity of our

Nation, adopting a subjective approach would

reduce the test to an absurdity. Nearly any gov-

ernment action could be overturned as a violation

of tne Establishment Clause if a ‘heckler's veto’

sufficed to show that its message was one of en-

dorsement. ... There is always someone who,

with a particular quantum of knowledge, rea-

sonably might perceive a particular action as an

endorsement of religion.

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

2321-22 (2004) (O’Connor, J. concurring) (emphasis in

Original; internal citation omitted). In this case, the Peti-

tioner urges this Court to believe that a reasonable observer

would myopically focus on the Ten Commandments monu-

ment while failing to notice any of the other historical and

cultural monuments on the Texas Capitol grounds. This ap-

proach truly does “render the test an absurdity.” If followed,

it would mechanically invalidate all state references to relig-

ion.

This Court should also decline all invitations to place

exclusive reliance on whether a religious display is situated

in or near the “seat of government.” See, e.g., Brief of Peti-

tioner at 34-38, Van Orden v. Perry (No. 03-1500). Texas

displays many memorials, statues, works of art, and general

commemorations on its capitol grounds. Some of these dis-

11

plays have religious content, others do not, but they all share

the common purpose of commemorating the state’s cultural

heritage. The reasonable observer must be deemed aware of

these facts.

If religious displays could be considered unconstitu-

tional simply because of placement at “the seat of govern-

ment,” countless existing displays in Texas, in Arizona, and

across the nation would be affected. Displays in the Su-

preme Court building and in this Court’s own chamber could

hardly survive such scrutiny. See Lynch, 465 U.S. at 677.

Overemphasis on whether a display is near the “seat of gov-

ernment” eviscerates the reasonable observer standard.

Texas is a diverse state with heterogeneous religious prac-

tices. The reasonable observer knows of this diversity and

would never expect any one decoration on the capitol

grounds to carry the state’s imprimatur to the exclusion of all

others.

The “history and ubiquity” of religious displays has

become a key part of the endorsement inquiry. See Newdow,

124 S.Ct. at 2323-24 (O’Connor, J., concurring); Allegheny,

492 U.S. at 630 (O’Connor, J., concurring); see also Free-

thought Soc’y of Greater Philadelphia v. Chester County,

334 F.3d 247, 265 (3d Cir. 2003) (“the reasonable observer

would perceive a historic plaque as less of an endorsement of

religion than a more recent religious display”). The Texas

Ten Commandments Monument has been publicly displayed

for 42 years without a legal challenge. See Van Orden, 351

F.3d at 181. This is a cogent reason why the reasonable ob-

server would never consider its presence a state endorsement

of a specific religious belief. But even if the Texas monu-

ment was much younger, it would still be constitutional. The

Establishment Clause is more than just a “safe harbor” for

antiquated relics of what American society once was. States

should be allowed to continue to celebrate their present cul-

ture, even as they commemorate their proud heritages.

12

The age of a religious display, though sometimes rele-

vant, should not be dispositive of its constitutionality. Ar-

zona’s memorials honoring the memories of Father Braun

and Balbir Singh Sodhi are not impermissible endorsements

of religion simply because they were erected in 2001 and

2003, rather than in 1964 like Arizona’s Ten Command-

ments monument. This Court should avoid an analytical ap-

proach that would create a constitutional “grandfather

clause” for older monuments, but rigidly invalidate all mod-

er commemorations of religious faith.

Ill. PERSONAL DISAGREEMENT IS NOT CON-

STITUTIONAL INJURY

The Petitioner in this case could make no claim of con-

Stitutional injury if he were seeking to suppress a display that

he disagreed with as a matter of politics, philosophy, or artis-

tic taste.° The result should not change here, where he has

targeted one of many monuments on the Texas State Capitol

grounds because he disagrees with its religious content. Van

Orden, 351 F.3d at 175-76.

[T]he Constitution does not guarantee citizens a

night entirely to avoid ideas with which they dis-

agree. It would betray its own principles if it

did; no robust democracy insulates its citizens

from views that they might find novel or even in-

flammatory.

Newdow, 124 S. Ct. at 2327 (O’Connor, J., concurring).

Significantly, Petitioner and others who oppose gov-

ernment recognition of religious faith are not without re-

course. This Court has repeatedly affirmed that the govern-

ment is politically accountable for the content of its own

® See generally, Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc., 454 U.S. 464, 485-86

(1982) (“psychological” injury is insufficient to confer Article III stand-

ing).

13

speech. See Bd. of Regents of Univ. of Wis. Sys. v. South-

worth, 529 U.S. 217, 235 (2000); Rust v. Sullivan, 500 U.S.

173, 192-95 (1991). The Establishment Clause, however, as

illuminated by history, does not convey a heckler’s veto to

offended observers. To rule otherwise would trigger the ex-

purgation of monuments and displays across the country.

CONCLUSION

The Establishment Clause is not at odds with our na-

~ tion’s religious heritage or with the necessary role religion

plays today in our pluralistic culture. The Texas Ten Com-

mandments monument should not be removed from amid all

the other cultural monuments on the Capitol grounds because

of its religious content.

The statue of Father Kino at the Arizona State Capitol

Complex in Phoenix includes an embedded time capsule,

which will be opened on August 22, 2235. Memorial De-

scriptions, supra, at 1. Amici trust that on that day displays

like the statue of Father Kino and the Ten Commandments

monument will still be standing, having survived all mis-

guided attempts to remove them from the public square.

The Court should affirm the decision below.

Respectfully Submitted,

LEN L. MUNSIL

Counsel of Record

CATHI W. HERROD

PETER A. GENTALA

THE CENTER FOR ARIZONA POLICY

11000 N. Scottsdale Rd., Suite 120

Scottsdale, Arizona

(480) 922-3101

Counsel for Amici

Dated: January 27, 2005

APPENDIX

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