Amicus Curiae Brief — Van Orden v. Perry

No. 03-1500

In The Lorrce o j

Supreme Cort of the Wnited States

THOMAS VAN ORDEN,

Petitioner,

RICK PERRY,

IN HIS OFFICIAL CAPACITY AS

GOVERNOR OF TEXAS AND CHAIRMAN,

STATE PRESERVATION BOARD, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Fifth Circuit

AMICUS CURIAE BRIEF OF

THE RUTHERFORD INSTITUTE

IN SUPPORT OF RESPONDENTS

John W. Whitehead

Counsel of Record

Douglas R. McKusick

THE RUTHERFORD INSTITUTE

1440 Sachem Place

Charlottesville, Virginia 22906

(434) 978-3888

Date: January 12, 2005

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virgima 23219 (800) 847-0477

Question Presented for Review

Whether a large monument, 6 feet high and 3 feet

wide, presenting the Ten Commandments, located on

government property on the walkway between the

Texas State Capitol and the Texas Supreme Court, is an

impermissible establishment of religion in violation of

the First Amendment.

ee

TABLE OF CONTENTS TABLE OF AUTHORITIES

Abington Sch. District v. Schempp,

QUESTION PRESENTED FOR REVIEW.......000sss0eeeeeneeeseees sem ii EEE eee 17

TABLE OF AUTHORITIES PT TTTTTTTIELIL TL hee iil America Civil Liberties Union v. McCreary County,

354 F.3d 438 (6th Cir. 2003) (display erected in 1999).........13

INTEREST OF AMICUS CURIAE ......sccceeeeesseeeeeeeesenneneeneeesens 1

Arkansas Educational Television Commission v. Forbes,

STATEMENT OF CASE.......-sssesceeeeeeseeeeeeeneeeeneneeeeneenenesens 2 a a cunnneeunneonsonns 1

SUMMARY OF THE ARGUMENT........:sseeeeeeeeeeeeeeeenenesesees 2 Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000)............13

ARGUMENT......cscsccsssccecccsccccssececsecescsscessccenerssasasessens 4 Capitol Square Review & Advisory Board v. Pinette,

EE ne 4,5,6,10

17

ONCLUSION. ....cccccsccscccccccccsvcessscccsssccsooessssesessooeseses

. County of Allegheny v. America Civil Liberties Union,

ET ticcntnesadcbdteccccessecescovecescscsocconcs passim

Edwards v. Aguillard, 482 U.S. 578 (1987).................020e000 13

Sees O. Wet, S70 We. GZE (IGGZ)......ccccccccccccccccecccsocsccees 17

Epperson v. Arkansas, 393 U.S. 97 (1968)..............200c008 14,17

Everson v. Board of Education, 330 US. 1 (1947).................. 15

Frazee v. Department of Employment Sec.,

EE Ae aa 1

Freethought Society v. Chester County,

ME nc ccccccndcsdesessevecssesecevsescoceses 14

Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003)........... 8,13

Good News Club v. Milford Central School District,

aii iiaerndcenessccesnbadeeneentasessscesoscons 1

ili

Lynch v. Donnelly, 465 U.S. at 668 (1983). ........---+++++- passim

Modrovich v. Allegheny County, 5

385 F.3d 397 (3d Cir. 2004).............ceeeeeeeeeeeeeeneeseeeees 14, 17

Owasso Independent School District v. Falvo,

534 U.S. 426 (2002).........:ceeeeeeeeeeeeceeneeneeeeeeesenensennsnane snes 1

Sch. District of Grand Rapids v. Ball,

473 U.S. 373 (1985)........ceeeeeeeeeeeeneeeeeeeeeeseeeseneennenessnees 14

Stone v. Graham, 449 U.S. 39 (1980)..........-.-eeeeeerereeeeeeeee ees 12

Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003)..........passim

INTEREST OF AMICUS CURIAE!

The Rutherford Institute is an international non-profit

civil liberties organization headquartered in Charlottesville,

Virginia. Founded in 1982 by its President, John W.

Whitehead, the Institute specializes in providing free legal

representation to individuals whose civil liberties are

threatened or infringed and in educating the public about

constitutional and human rights issues. Attorneys affiliated

with the Institute have represented parties before the Court

in numerous First Amendment cases such as Frazee v.

Department of Employment Sec., 489 U.S. 829 (1989), Arkansas

Educational Television Comm'n v. Forbes, 523 U.S. 666 (1998),

Good News Club v. Milford Central School District, 533 U.S. 98

(2001), and Owasso Indep. School District v. Falvo, 534 U.S. 426

(2002). The Institute has also filed briefs as an amicus of the

Court on many occasions. Institute attorneys regularly

handle First Amendment cases that concern the interplay

between the Establishment Clause and the Free Speech and

Free Exercise Clauses. The Institute has published

educational materials and taught courses in this area as

well.

The Rutherford Institute supports the Respondents in

this case because the Fifth Circuit's judgment and opinion

recognize the important place the Ten Commandments

occupies in the development of the law, both in this country

and worldwide. [Equally important, the Fifth Circuit's

decision establishes as precedent that religious symbols

' Counsel of record to the parties in this case have consented to the

filing of an amicus curiae brief by The Rutherford Institute, and

letters reflecting said consent have been filed with this Brief. No

person or entity, other than the Institute, its supporters, or its

counsel, made a monetary contribution to the preparation or

submission of this brief. The Rutherford Institute expresses its

gratitude for the research assistance provided by J. Charlton

Wimberly.

need not be wholly purged from public life and may be

recognized as an important part of our heritage.

STATEMENT OF THE CASE

This brief incorporates by reference the statement of

facts contained in the principal brief of the Respondents.

SUMMARY OF ARGUMENT

The historic Ten Commandments monument, which

has resided for forty-two years among the other historic

monuments on the grounds of the Texas State Capitol, does

not constitute a government endorsement of religion. The

monument’s context establishes that it is merely one of

many commemorations of the history and culture of Texas.

The Fifth Circuit's opinion makes this point clearly, and

Amicus respectfully submits that this Court should affirm

the Fifth Circuit’s decision.

First, the mere presence on government property of a

monument with religious themes is not a violation of the

Establishment Clause. Such a monument only violates the

United States Constitution if a reasonable observer would

believe that the government endorses the monument's

religious message. However, Petitioner seeks to do away

with the endorsement test's reasonable observer standard

and proposes a new “field of vision” test to take its place.

Under Petitioner's proposed “field of vision” test, this

Court's endorsement analysis would focus merely on what a

viewer can see, rather than on what a reasonable observer,

acquainted with the context and history of the monument

and its forum, would know. Petitioner's proposed test has

no basis in case law, and it should be rejected.

When analyzed under the proper reasonable

observer standard, the presence of the Ten Commandments

Monument behind? the Texas State Capitol—one of

seventeen monuments on the historic twenty-two acre

capitol grounds—is not a government endorsement of

religion. Rather, it is in the equivalent of a museum context,

which negates government endorsement of the monument’s

religious message.

Second, the Fifth Circuit’s decision is consistent with

this Court's prior decisions on religious displays, as well as

with the decisions of other Circuit Courts of Appeals

concerning Ten Commandments monuments in or near

government buildings.

Finally, the Establishment Clause mandates that

government remain neutral between religion and non-

religion. Petitioner requests that this Court abandon the

reasonable observer standard and instead legalize the

heckler’s veto. This would result in the whitewashing of

our nation’s religious history and would fall far short of the

neutrality required by the Establishment Clause.

Amicus respectfully submits that this Court should

affirm the Fifth Circuit’s decision.

? Petitioner’s Brief asserts that the Ten Commandments monument is

located “directly in front of the Texas State Capitol.” Br. for Pet'r at 30.

However, the Fifth Circuit's opinion states that the Capitol Bui‘ding’s

“main entry” is on its south side, while the Ten Commandments

monument is located seventy-five feet away from the Capitol Building's

north side. Van Orden, 351 F.3d at 176.

ARGUMENT

I. THE FIFTH CIRCUIT PROPERLY HELD THAT

MAINTENANCE CF THE FORTY-TWO-YEAR-OLD TEN

COMMANDMENTS MONUMENT AMONG SIXTEEN

OTHER MONUMENTS ON THE HISTORIC GROUNDS

OF THE TEXAS STATE CAPITOL DOES NOT VIOLATE

THE ESTABLISHMENT CLAUSE BY

UNCONSTITUTIONALLY ENDORSING RELIGION.

A. Petitioner's Proposed “Field of Vision”

Test—Which Directly Contradicts the

Endorsement Analysis, Ignores the

Reasonable Observer Standard, and Has No

Basis in Case Law— Should Be Rejected.

Whether or not a display has the effect of endorsing

religion depends upon whether a “reasonable observer”

would consider the display to constitute a government

endorsement of religion. See County of Allegheny v. Am. Civil

Liberties Union, 492 U.S. 573, 620 (1989) (O’Connor, J.,

concurring in part and concurring in the judgment) (stating

that, when considering a religious display, “the

constitutionality of its effect must also be judged according

to the standard of a ‘reasonable observer’”).

When applying the endorsement test, the reasonable

observer is “deemed more informed than the casual

passerby.” Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753, 779 (1995) (O’Connor, J., concurring in part and

concurring in the judgment). The “knowledge attributed to

the reasonable observer” cannot “be limited to the

information gleaned simply from viewing the challenged

display.” Id. at 780. Rather, the reasonable observer is

deemed to be “aware of the history and context of the

community and forum in which the religious display

appears.” Id.

Petitioner rejects the reasonable observer standard.

While a substantial portion of Petitioner's Brief is devoted to

the discussion of endorsement, nowhere does the brief

attempt to define “reasonable observer” or discuss what

facts 2 reasonable observer would know. Instead,

Petitioner's Brief proposes a “field of vision” test, asserting

that—when determining context for purposes of the

endorsement test—“the appropriate focus must be on what

the viewer of the Ten Commandments monument sees in

looking at [the monument] and the area immediately

around it.” Br. for Pet’r at 35. This “field of vision” test is a

major component of Petitioner's argument and is alluded to

throughout Petitioner’s Brief. See, e.g., Br. for Pet’r at 3

(“[NJo other monument is visible from the Ten

Commandments monument .. . .”); id. at 29 (noting that “no

other monuments [are] visible when standing before” the

Ten Commandments monument); id. at 33 (“No monument

or display is next to, or even visible from, the Ten

Commandments monument.”); id. at 34 (suggesting that, in

Lynch v. Donnelly, 465 U.S. 668 (1983), “all of the symbols

[were] within the view of the observer”); id. at 35 (asserting

that “the appropriate focus must be on what the viewer of

the Ten Commandments monument sees”); id. at 36 (noting

that, in Allegheny, “the viewer saw only the créche and its

floral frame”).

Petitioner's proposed “field of vision” test is directly

contradictory to the endorsement test. Whereas the

endorsement test considers a reasonable observer with

knowledge beyond what can be “gleaned simply from

viewing” the monument, Capitol Square, 515 U.S. at 780

(O’Connor, J., concurring in part and concurring in the

judgment), Petitioner's proposed test would limit analysis to

what any single observer can “glean{] simply from viewing”

the monument “and the area immediately around it.” Br.

for Pet’r at 35.

Not only does Petitioner’s proposed “field of vision”

test contradict the endorsement test, it also has no basis in

case law. Petitioner's Brief ostensibly relies on Lynch and

Allegheny for support, but neither case is consistent with the

proposed test. Lynch never once discusses what is in the

field of vision of a person looking at the créche at issue in

that case, and the statements to which Petitioner points in

Allegheny are taken out of context to make them look as if

they support Petitioner's proposed “field of vision” test.

But rather than emphasizing what is in view when looking

at a contested display, both cases underscore the importance

of a display’s overall context.

Petitioner's Brief interprets the Allegheny opinion as

saying that this Court “declined the government's invitation

to consider decorations throughout the building and in a

nearby forum as part of the créche display.” Br. for Pet’r at

36. Petitioner’s Brief then immediately infers that the

“[c]ontext was restricted to what the viewer saw when

observing the questioned display.” Id. However, this

inference is significantly off the mark. The portion of the

Allegheny opinion cited to support this inference, and

therefore purportedly supporting Petitioner's “field of

vision” test, reads as follows:

The presence of Santas or other Christmas

decorations elsewhere in the county

courthouse, and of the nearby gallery forum,

fail to negate the endorsement effect of the

créche. The record demonstrates clearly that

the créche, with its floral frame, was its own

display distinct from any other decorations or

exhibitions in the building.

Allegheny, 492 U.S. at 598 n48. This passage, which

mentions nothing about what is in an observer's field of

vision, places emphasis entirely on the fact that the créche

was “distinct from any other decorations or exhibitions in

the building.” The fact that the other Christmas decorations

were not visible from the créche is unrelated to the Court's

reason for not considering those other decorations. If this

passage were endorsing the field of vision test, then the

second sentence would be superfluous: whether or not the

créche was part of a larger exhibit would be irrelevant as

long as other displays in the exhibit were not visible from

the site of the créche. But the passage as a whole makes

clear that the other decorations were not considered in the

endorsement analysis because they did not, along with the

créche at issue, comprise a unified exhibit and, therefore,

were not part of a context which negated the créche’s

endorsement effect.

The only portion of Allegheny which might be

construed as supporting the “field of vision” argument is

the following sentence from Part I.A of Justice Blackmun’s

opinion: “In addition, various departments and offices

within the county courthouse had their own Christmas

decorations, but these also are not visible from the Grand

Staircase.” Allegheny, 492 U.S. at 581 (emphasis added).

However, this portion of the opinion was joined by only two

other Justices, meaning that whatever inference might

possibly be made from the statement cannot be attributed to

a majority of the Court. Also, this sentence is immediately

preceded by a discussion of the fact that the créche on the

Grand Staircase is “distinct and not connected with any

exhibit in the gallery forum,” a nearby part of the

courthouse “used for art and other cultural exhibits.” Id.

Once again, the focus of the section taken as a whole is not

on what could or could not be seen from the site of the

créche, but rather on the fact that the créche in Allegheny was

not part of a larger exhibit.

As explained in the following section, the Ten

Commandments monument is part of a larger exhibit, as

was the créche at issue in Lynch. It is one of seventeen

historic monuments on the capitol grounds, which “are

designated as a National Historic Landmark that is

dedicated to the display of ‘statues, memorials, and

commemorations of people, ideals and events that compose

Texan identity.” Van Orden v. Perry, 351 F.3d 173, 180 (Sth

Cir. 2003) (quoting H. Con. Res. 38, 77th Leg., R.S. (2001)).

B. A Reasonable Observer Would Recognize

that the Ten Commandments Monument Is

Being Displayed in the Equivalent of a

Museum Setting, a Context that Negates

Government Endorsement of _ the

Monument'’s Religious Message.

“[I]n_ religious-symbols cases, context is the

touchstone[.]” Glassroth v. Moore, 335 F.3d 1282, 1284 (11th

Cir. 2003) (alteration in original) (citation omitted). Context

is important because it can “negate any message of

endorsement of [a display’s] content.” Lynch, 465 U.S. at 692

(O’Connor, J., concurring); accord Allegheny, 492 U.S. at 595

(opinion of Blackmun, J., joined by Stevens, J.).

Petitioner's Brief displays a fundamental

misunderstanding of how context operates in the

endorsement analysis. For example, Petitioner's Brief

asserts that “[i]f the State displayed a créche in the manner

and at the place where the Ten Commandments monument

is located, its action would be unquestionably

unconstitutional.” Br. for Pet’r at 9. This argument makes

no sense. By definition, context changes with situation.

Since context is the touchstone in the endorsement analysis,

then it does not follow that if a religious holiday decoration

cannot be displayed in a location, then a historic monument

cannot be displayed in that location either. Of course, a lone

créche could not be erected in place of the Ten

Commandments monument; a créche in that location would

not be part of a larger exhibit celebrating what has become a

secular holiday and, therefore, would not be in a context

that negates its effect of endorsing religion. However, a

créche could be placed in that location if it were part of a

Christmas display, as in Lynch. Likewise, the Ten

Commandments monument could not be placed among

Christmas decorations in a government building; the

Decalogue is not traditionally related with Christmas so the

Christmas exhibit would not negate the Decalogue’s

religious message. However, the Ten Commandments

monument can be displayed on the capitol grounds because

it is part of a larger exhibit of seventeen historic monuments

“commemorati[ng the] people, ideals and events that

compose Texan identity[.]” Van Orden, 351 F.3d at 180

(quoting H. Con. Res. 38, 77th Leg., R.S. (2001)). The overall

context created by this larger exhibit — a context of which the

reasonable observer would certainly be aware—negates

government endorsement of the monuments religious

message.

Not only does Petitioner misunderstand context,

Petitioner also fails to give the context of the Ten

Commandments monument due consideration. In Lynch,

this Court stated that the trial court had “plainly erred by

focusing almost exclusively on the créche” rather than

viewing it “in the proper context of the Christmas Holiday

season” and as part of a larger “display depict[ing] the

historical origins of this traditional event long recognized as

a National Holiday.” Lynch, 465 U.S. at 680 (citations

omitted). The trial court's mistake in Lynch—focusing

exclusively on the créche—is being repeated by Petitioner in

this case. Petitioner's Brief focuses on the Ten

Commandment’s statue by itself, without considering the

larger context of the Capitol grounds. See, e.g., Br. of Pet’r at

9 (“The monument sits by itself . . . .”); id. at 29 (“The Ten

Commandments sits by itself... .); id. at 33 (“The Ten

Commandments display sits on a corner by itself . . . .”).

Context must be viewed from the perspective of a

“reasonable observer” acquainted with “the history and

context of the community and forum in which the religious

display appears.” Capitol Square, 515 U.S. at 780 (O’Connor,

J., concurring in part and concurring in the judgment). In

this case, the reasonable observer should be aware of the

fact that the Ten Commandments monument is in the

equivalent of a museum setting: it is one of seventeen

monuments spread across the historic twenty-two acre

Capitol grounds. The parties “stipulated that ‘the Capitol,

together with its grounds and the monuments erected and

maintained there constituted a National Historic

Landmark.” Van Orden, 351 F.3d at 175. These grounds are

maintained by the State Preservation Board, which qualifies

as a museum under federal law, id. at 180 (citing 20 U.S.C. §

9172 (2003)), and the State employs a professional museum

curator as Curator of the Capitol. Id. Also, the Visitor

Services of the State publishes a written guide for walking

tours of the grounds. Id. These are all facts concerning the

“history and context of the community and forum,”

meaning that they are all facts of which the reasonable

observer would be aware.

In Lynch, Justice O’Connor analogized the context of

the créche at issue there to “a typical museum setting.”

Lynch, 465 U.S, at 692 (O’Connor, J., concurring). If the

museum analogy is appropriate for a Christmas display in a

public park, then it is certainly appropriate for a monument

that is overseen with other monuments by a professional

museum curator and a Board that is statutorily defined as a

museum. Indeed, it would be difficult to conceive of a

situation closer to a museum context without actually

conceiving of a museum. This museum-like setting also

“changes what viewers may fairly understand to be the

10

purpose of the display” by “negat[ing] any message of

endorsement of that content.” Id.

II. THE FIFTH CIRCUIT’S DECISION IS CONSISTENT WITH

THIS COURT’S PREVIOUS DECISIONS CONCERNING

RELIGIOUS DISPLAYS AND WITH DECISIONS BY

OTHER CIRCUIT COURTS OF APPEALS CONCERNING

THE CONSTITUTIONALITY OF TEN COMMANDMENTS

MONUMENTS.

The Fifth Circuit's decision is consistent with

previous decisions by both this Court and the other Circuit

Courts of Appeals. In all of these decisions, context is the

key. Yet, Petitioner consistently refuses to consider context

when discussing how these cases relate to the case at hand.

Petitioner's Brief seeks to compare the Ten

Commandments monument at issue here to the créche

display that was held unconstitutional in Allegheny, but the

two displays have almost nothing in common. The créche

in Allegheny “occupied a substantial amount of space on the

Grand Staircase,” Allegheny, 492 U.S. at 580, which was the

“‘main,’ ‘most beautiful,’ and ‘most public’ part of the

courthouse.” Id. at 579, In contrast, the Ten

Commandments monument is located outside, seventy-five

feet behind the Capitol Building. Van Orden, 351 F.3d at 176.

The créche in Allegheny had no historical significance,

having been displayed in the courthouse for only five years

when it became the subject of litigation. Allegheny, 492 U.S.

at 579. The Ten Commandments monument, however, has

been located in the same position behind the Capitol

Building for more than forty-two years. Van Orden, 351 F.3d

at 175. Finally, the créche was “distinct and not connected

with any exhibit,” Allegheny, 492 U.S. at 581, whereas the

Ten Commandments monument is part of a _ historical

exhibit of seventeen monuments that spans twenty-two

acres. Van Orden, 351 F.3d at 175. In short, there are almost

no correlating facts between Allegheny and the instant case;

11

Petitioner can only draw comparisons between the two

cases by ignoring the reasonable observer standard and by

refusing to examine the context of the Ten Commandments

monument. In actuality, the Ten Commandments

monument is much more like the créche display found

constitutional in Lynch. “The Lynch display composed a

series of figures and objects, each group of which had its

own focal point” and was “a center of attention separate

from the créche.” Allegheny, 492 U.S. at 598. As in Lynch,

the Ten Commandments monument is merely one of

seventeen “focal point[s],” a context which negates

government endorsement of the monument’s religious

message.

Petitioner's Brief also places a great deal of emphasis

on Stone v. Graham, 449 U.S. 39 (1980); see, e.g., Br. of Pet’r at

8, 10-11, 23, 25, 27, 33, 41-42. Stone, which struck down a

state statute requiring posting of the Ten Commandments in

public schools, is easily distinguished. First, the Stone Court

recognized that the Ten Commandments could be

disseminated and discussed in public schools in some

contexts: “This is not a case in which the Ten

Commandments are integrated into the school curriculum,

where the Bible may constitutionally be used in an

appropriate study of history, civilization, ethics,

comparative religion, or the like. Posting of religious texts

on the wall serves no such educational function.” Stone, 449

US. at 42 (citation omitted). Maintaining, in a museum-like

setting, a monument donated by a private group is a far cry

from the mandatory posting of the Ten Commandments in

every public school. A state could not mandate that a

painting of the Virgin Mary holding baby Jesus be displayed

on the wall of every public school, but that does not mean

that such a painting is banned from all government

property. In fact, many such paintings are hanging in the

National Gallery of Art. Second, the Establishment Clause

is applied differently in a public school setting than it is in

12

other contexts. This Court has noted its “particular[]

vigilan{ce] in monitoring compliance with the Establishment

Clause in elementary and secondary schools” because of the

“great authority and coercive power” that the government

exerts due to “mandatory attendance requirements” and to

“the students’ emulation of teachers as role models and the

children’s susceptibility to peer pressure.” Edwards v.

Aguillard, 482 U.S. 578, 583-84 (1987) (citations and footnote

omitted). The present context presents none of these

problems.

Finally, the Fifth Circuit's decision is also consistent

with decisions by other Circuit Courts of Appeals

concerning Ten Commandments monuments in or near

government buildings. Such monuments have been found

unconstitutional when they are relatively new, see Am. Civil

Liberties Union v. McCreary County, 354 F.3d 438, 441 (6th Cir.

2003) (display erected in 1999); Glassroth v. Moore, 335 F.3d

1282, 1286 (11th Cir. 2003) (monument installed in 2001),

and when they are located in a prominent position and are

not part of a larger exhibit. See McCreary, 354 F.3d at 441

(framed copy of Ten Commandments was displayed inside

the County Courthouse and “was not part of any larger . . .

exhibit”); Glassroth, 335 F.3d at 1284 (two-and-one-half ton

monument of the Ten Commandments was erected “as the

centerpiece of the rotunda in the Alabama State Judicial

Building” and was purposefully left by itself so as not to

“diminish” “the revealed law of God”); Books v. City of

Elkhart, 235 F.3d 292, 306 (7th Cir. 2000) (Ten

Commandments monument was located on front lawn of

City’s Municipal Building and could not “be fairly

characterized as a component of a comprehensive display of

... cultural heritage”).

However, the Ten Commandments monument at

issue here possesses none of these traits: it is forty-two-

years old, it is located seventy-five feet behind the Capitol

13

(rather than in the Rotunda or near the main entrance), and

it is part of a larger exhibit of seventeen historic monuments

that, along with the Capitol grounds, comprise a National

Historic Landmark. Van Orden, 351 F.3d at 175. It is,

therefore, more similar to the displays at issue in Modrovich

v. Allegheny County, 385 F.3d 397, 399 (3d Cir. 2004) (finding

constitutional a Ten Commandments plaque displayed on

the side of the Allegheny Courthouse since 1918, that has

not been “highlighted or displayed prominently, and is one

of several historical relics displayed on the courthouse”),

and Freethought Society v. Chester County, 334 F.3d 247, 249-

50 (3d Cir. 2003) (finding constitutional a Ten

Commandments plaque displayed on the side of the Chester

County Courthouse since 1920).

When viewed in context, this case resembles cases

like Lynch: it is a historic display, not located in a position of

prominence, that is part of a larger context which negates

government endorsement of the display’s religious message.

II]. ACCEPTANCE OF PETITIONER’S PROPOSED “FIELD OF

VISION” RULE WOULD’ RESULT IN_ THE

WHITEWASHING OF OUR NATION’S RELIGIOUS

HISTORY AND FALL FAR SHORT OF THE NEUTRALITY

BETWEEN RELIGION AND NON-RELIGION

MANDATED BY THE ESTABLISHMENT CLAUSE.

The Fifth Circuit correctly held that the

Establishment Clause’s “guiding principle is government

neutrality toward religion in the sense that a state cannot

favor religion over non-religion or one religion over

another.” Van Orden, 351 F.3d at 178. This neutrality

principle has been set forth by this Court on multiple

occasions. See, e.g., Epperson v. Arkansas, 393 U.S. 97, 103-04

(1968) (“The First Amendment mandates governmental

neutrality between religion and religion, and between

religion and nonreligion.”); see also Sch. Dist. of Grand Rapids

v. Ball, 473 U.S. 373, 382 (1985) (noting that this Court has

14

“consistently recognized” a requirement that “the

government . . . maintain a course of neutrality among

religions, and between religion and nonreligion”); Everson v.

Bd. of Educ., 330 U.S. 1, 18 (1947) (“Th{e] [First] Amendment

requires the state to be a neutral in its relations with groups

of religious believers and non-believers; it does not require

the state to be their adversary. State power is no more to be

used so as to handicap religions, than it is to favor them.”).

It is as much a violation of the Establishment Clause

for the government to favor non-religion as it is for the

government to favor religion. That is why this Court has

noted that “[T]he Constitution [does not] require complete

separation of church and state; it affirmatively mandates

accommodation, not merely tolerance, of all religions, and

forbids hostility toward any. Anything less would require

the ‘callous indifference’ we have said was never intended

by the Establishment Clause.” Lynch, 465 US. at 672

(citations omitted).

The endorsement test, with its objective “reasonable

observer” standard, was created to avoid this “callous

indifference” and “hostility toward” religion? As the Fifth

> Justice O'Connor made this clear in Capitol Square: “[{T}he

endorsement inquiry is not about the perceptions of particular individuals

or saving isolated nonadherents from the discomfort of vie wing symbols

of a faith to which they do not subscribe. Indeed, to avoid ‘entirely

sweep|[ing] away all government recognition and acknowledgment of the

role of religion in the lives of our citizens,’ our Establishment Clause

jurisprudence must seek to identify the point at which the government

becomes responsible, whether due to favoritism toward or disregard for

the evident effect of religious speech, for the injection of religion into the

political life of the citizenry. I therefore disagree that the endorsement

test should focus on the actual perception of individual observers, who

naturally have differing degrees of knowledge. Under such an approach,

a religious display is necessarily precluded so long as some passersby

would perceive a governmental endorsement thereof. . . .

It is for this reason that the reasonable observer in the endorsement

inquiry must be deemed aware of the history and context of the

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Circuit noted, the “reasonable observer standard attempts to

capture the ‘concern with the political community writ

large” rather than the concern of “the uninformed, the

casual passerby, the heckler, or . . . a single individual.” Van

Orden, 351 F.3d at 178 (quoting Capitol Square, 515 US. at

779) (O'Connor, J., concurring in part and concurring in

judgment). However, Petitioner rejects the entire reasonable

observer construct. The new test proposed by Petitioner

would require removal from government property of all

things religious to which any passerby objects. In other

words, Petitioner is seeking to legalize the “heckler’s veto of

the unreasonable or ill-informed” of which the Fifth Circuit

warned. Van Orden, 351 F.3d at 182.

Doing away with the reasonable observer standard,

as Petitioner requests, would essentially whitewash our

nation’s religious history by “entirely sweep[ing] away all

government recognition and acknowledgment of the role of

religion in the lives of our citizens.” Allegheny, 492 U.S. at

623 (O'Connor, J., concurring in part and concurring in the

judgment). As the Third Circuit recently concluded:

Given our national interest in historical

preservation, we believe we would set a

dangerous precedent if we were to hold that

any relic containing a religious message

should be removed merely because “any

person . . . could find an endorsement of

religion” or “some people may be offended”

by it. Our country's history is s in

religious _ traditions. The fact that

government buildings continue to preserve

community and forum in which the religious display appears.” 515 U.S.

at 779 (O’Connor, J., concurring in part and concurring in the judgment)

(quoting Allegheny, 492 U.S. at 623 (O'Connor, J., concurring in part

and concurring in the judgment)) (other citations omitted).

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artifacts of that history does not mean that

they necessarily support or endorse the

particular messages contained in those

artifacts.

Modrovich, 385 F.3d at 410-11 (quoting Capitol Square, 515

US. at 780 (O’Connor, J., concurring in part and concurring

in the judgment)).

This Court has long recognized the role that religion

has played in our nation’s history, see, e.g., Abington Sch.

Dist. v. Schempp, 374 U.S. 203, 212 (1963) (“[R]eligion has

been closely identified with our history and government. . .

“); Engel v. Vitale, 370 U.S. 421, 434 (1962) (“The history of

man is inseparable from the history of religion.”), and has

stated that “[a] secular state . . . is not the same as an

atheistic or antireligious state. A secular state establishes

neither atheism nor religion as its official creed.” Allegheny,

492 US. at 610. The wiping out of all public references to

religion is entirely inconsistent with the Establishment

Clause’s mandate that government exhibit “neutrality

between . . . religion and nonreligion.” Epperson, 393 US. at

103-04. And such whitewashing of our country’s religious

history will take us dangerously close to an effective

endorsement of atheism as our nation’s official creed.

CONCLUSION

The historic Ten Commandments monument, which has

resided for forty-two years among the other historic

monuments on the Capitol grounds, does not constitute a

government endorsement of religion. The monument's

context establishes that it is merely one of many

commemorations of the history and culture of Texas. The

Fifth Circuit’s opinion makes this point clearly, and Amicus

respectfully submits that this Court should affirm the Fifth

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Circuit's decision and reject Petitioner's proposed “field of

vision” test, which would “sweep away all government

recognition and acknowledgment of the role of religion in

the lives of our citizens.”

Respectfully Submitted,

John W. Whitehead (Counsel of Record)

Douglas R. McKusick

THE RUTHERFORD INSTITUTE

1440 Sachem Place

Charlottesville, VA 22901

(434) 978-3888

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