# Amicus Curiae Brief — Van Orden v. Perry

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0001%3A35

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 677

## Text

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

15

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).

16

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

17

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0001%3A35. Public record. Not legal advice.