Amicus Curiae Brief — McCreary County v. American Civil Liberties Union of Ky.
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No. 03-1693 |
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In the Supreme Court of the Gnited States
McCREARY COUNTY, KENTUCKY, ET AL., PETITIONERS
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY,
ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS
PAUL D. CLEMENT
Acting Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
GREGORY G. KATSAS
Deputy Assistant Attorney
General
PATRICIA A. MILLETT
Assistant to the Solicitor
General
ROBERT M. LOEB
LOWELL V. STURGILL JR.
Attorneys
Department of Justice
Washington, D.C. 20580-0001
(202) 514-2217
QUESTION PRESENTED
Whether the display in a county courthouse of nine his-
torical documents and symbols that pertain to the develop-
ment of American law violates the Establishment Clause
because one of the documents is the Ten Commandments.
(I)
~ Interest of the United States
TABLE OF CONTENTS
Statement
Summary of argument
Argument:
A courthouse display of the Ten Commandments as
one of multiple influences on the development of
American law is consistent with the Establishment
Clause
A. Religious faith has played a defining role in the
history of the United States
B. Official acknowledgment and recognition of the
Ten Commandments’ influence on American
legal history comport with the Establishment
Clause
1. Official acknowledgments of religion’s role
~ in the nation’s history are commonplace .............
2. The Establishment Clause permits official
acknowledgment of the Ten Commandments’
contribution to the nation’s legal heritage ..........
a. Similar displays that acknowledge re-
ligious influences have been upheld .............
b. Petitioners’ display serves a legitimate
secular purpose
ce. Petitioners’ display has the valid secular
effect of acknowledging the Ten Com-
mandments uistorical influence on
American law
(IIT)
10
10
12
15
s 8%
IV
TABLE OF AUTHORITIES
Cases: Page
Agostini v. Felton, 521 U.S. 203 (1997) .......csseseseseeeees 15, 24
Anderson v. Salt Lake City © ovp., 475 F.2d 29 (10th
Cir. 1973), cert. denied, 414 US. 879 (1973) ......cssseesesseee 8, 23
Board of Educ. v. Mergens, 496 U.S. 226 (1990) .......... 21, 24
Books v. City of Elkhart, 235 F.3d 292 (7th Cir.
2000), cert. denied, 532 U.S. 1058 (2001) ........ccccscseeseeseees 8
Capitol Square Review & Advisory Bd. v. Pinette,
515 U.S. 753 (1995) 27, 30
City Council v. Benjamin, 33 S.C.L. 508 (S.C. Ct. App.
1848) 9
City of Elkhart v. Books, 532 U.S. 1058 (2001) ................ 8,14
County of Allegheny v. ACLU, 492 U.S. 573
(1989) passim
Edwards v. Aguillard, 482 U.S. 578 (1987) .......... 8, 14, 16, 23
Elk Grove Unified Sch. Dist. v. Newdow,
124 S. Ct. 2301 (2004) 10, 12, 23
Engel v. Vitale, 370 U.S. 421 (1962) 11, 28
Freethought Soc’y v. Chester County, 334 F.3d 247
(3d Cir. 2003) 8, 23
Good News Club v. Milford Cent. Sch., 533 US.
98 (2001) 20
Griswold v. Connecticut, 381 U.S. 479 (1965) .........ccsss0e 8
Hollywood Motion Picture Equip. Co. v. Furer,
105 P.2d 299 (Cal. 1940) 9
King v. Richmond County, 331 F.3d 1271 (11th Cir.
2003) 19
Kountz v. Price, 40 Miss 341 (1866) —
Lee v. Weisman, 505 U.S. 577 (1992) 23
Lynch v. Donnelly, 465 U.S. 668 (1984) passim
Marsh v. Chambers, 463 U.S. 783 (1983) .......... 10, 17, 24, 28
McDaniel v. Paty, 435 U.S. 618 (1978) . 20
McGowan v. Maryland, 366 U.S. 420 (1961) ......... 8, 9, 17, 24
oe ete,
a te
Cases—Continued: Page
Mitchell v. Helms, 530 U.S. 793 (2000) 21, 24
Mueller v. Allen, 463 U.S. 388 (1983) 27
National Archives & Records Admin. v. Favish,
124 S. Ct. 1570 (2004) 24
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290
(2000) 25, 27
School Dist. of Abington Township v. Schempp,
374 U.S. 203 (1963)
State v. Freedom from Religion Found, Inc.,
898 P.2d 1013 (Colo. 1995), cert. denied, 516 U.S. 1111
7, 17, 22
(1996) 8, 24
Stone v. Graham, 449 U.S. 39 (1980) 7, 14, 23, 29
United States v. O’Brien, 391 U.S. 367 (1968) ..............00. 27
Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003),
cert. granted, 125 S. Ct. 346 (2004) 8, 23
Wallace v. Jaffree, 472 U.S. 38 (1985) 15, 22
Walz v. Tax Comm’n, 397 U.S. 664 (1970) 16
Watts v. Gerking, 228 P. 135 (Or. 1924) 9
Zelman v. Simmons-Harris, 536 U.S. 639 (2002) ........... 18
Zorach v. Clauson, 343 U.S. 306 (1952) 10, 17
Constitution and statutes:
U.S. Const.:
Art. I, $7 9
Art. VII i)
Amend. I (Establishment Clause) passim
Act of March 3, 1865, ch. 100, § 5, 13 Stat. 518 1l
Act of Nov. 13, 2002, Pub. L. No. 107-293, 116 Stat. 2057:
§ 1, 116 Stat. 2060 ll
§ 2, 116 Stat. 2060 11
31 U.S.C. 5112(d)(1) ll
36 U.S.C. 302 11
VI
Miscellaneous:
1 William Blackstone, Commentaries on the Laws of
England: of the Rights of Persons (1765) (Univ. of
Chi. Press 1979)
D. Davis, Religion and the Continental Congress,
1774-1789 (2000) ....
H.R. Con. Res. 31, 105th Cong., Ist Sess. (1997) .............0.
H.R. Rep. No. 1693, 83d Cong., 2d Sess. (1954) ........scsss0e
J. Story, Value and Importance of Legal Study (1829),
reprinted in W. Story, The Miscellaneous Writings
of Joseph Story (1852)
Letters of John Quincy Adams, to His Son, on
the Bible and Its Teachings (James M. Alden ed.
1850)
S. Con. Res. 13, 105th Cong., Ist Sess. (1997) ..........ssssessees
6 The Works of John Adams, Second President of
the United States (Little & Brown eds. 1851) ...........:-00+
W. Walsh, History of Anglo-American Law
(1932) (W. Gaunts & Sons, Inc., 2d ed. 1993) .............sc0000
10
In the Supreme Court of the Gnited States
No. 03-1693
McCREARY COUNTY, KENTUCKY, ET AL., PETITIONERS
Vv.
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY,
ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS
INTEREST OF THE UNITED STATES
This case concerns whether the inclusion of the Ten Com-
mandments in a governmental display of historical docu-
ments that influenced the development of American law
violates the Establishment Clause. There are numerous
displays of the Ten Commandments and similar religious
symbols on federal property, including in federal court-
houses, the United States Capitol, the National Archives,
the Library of Congress, national monuments, and national
park lands. The United States has participated as amicus
curiae in prior cases addressing the constitutionality of
governmental displays of religious symbols. See Cownty of
Allegheny v. ACLU, 492 U.S. 573 (1989); Lynch v. Donnelly,
465 U.S. 668 (1984).
STATEMENT
1. In 1999, petitioners posted framed copies of the Ten
Commandments in the McCreary County and Pulaski
County Courthouses. Pet. App. 6a.’ After respondents filed
1 Harlan County posted a series of displays that included the Ten
Commandments in their public school classrooms, Pet. App. 6a-7a, but the
constitutionality of those displays is not at issue here.
(1)
2
suit challenging the displays, petitioners put up new displays
that consisted of a variety of historic and contemporary
documents, some of which petitioners “displayed in their en-
tirety,” and others for which petitioners “include[d] only that
document’s reference to God or the Bible with little or no
surrounding text.” Jd. at 8a (citation omitted). The district
court issued a preliminary injunction requiring the immedi-
ate removal of the displays on the grounds that they lacked a
secular purpose and had the effect of endorsing religion. The
court further prohibited county officials from “erect[ing] or
caus[ing] to be erected similar displays.” Jd. at 97a, 115a-
138a, 139a-162a.
County officials then erected new displays in each court-
house that consisted of the complete text of the Declaration
of Independence, the Mayflower Compact, the Bill of Rights,
the Magna Carta, the National Motto, the Star Spangled
Banner, the Preamble to the Kentucky Constitution, the Ten
Commandments, and a picture of Lady Justice. Pet. App. 9a,
184a-212a. The documents were reproduced in nine, equally
sized frames; none was given special prominence. /d. at 60a,
177a-178a. The documents were introduced by a plaque enti-
tled “The Foundations of American Law and Government
Display,” which explains that the “display contains docu-
ments that played a significant role in the foundation of our
system of law and government.” J/d. at 10a (citation omit-
ted). With respect to the display of the Ten Commandments,
that prefatory document explains:
The Ten Commandments have profoundly influenced the
formation of Western legal thought and the formation of
our country. That influence is clearly seen in the Decla-
ration of Indeperidence, which declared that, “We hold
these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are “Life,
Liberty, and the pursuit of Happiness.” The Ten Com-
3
mandments provide the moral background of the Decla-
ration of Independence and the foundation of our legal
tradition.
Ibid. (citation omitted).
The district court ordered petitioners to remove the
displays. Pet. App. 96a-114a. The court held that the Ten
Commandments are “sacred text which has a religious pur-
pose,” and the “government must dilute this religious pur-
pose if a truly secular purpose can be said to exist.” Jd. at
10la. The court then held that “educat{ing] the citizens of
the county regarding some of the documents that played a
significant role in the foundation of our system of law and
government” and including the Ten Commandments “as part
of the display for their significance in providing the ‘moral
background of the Declaration of Independence and the
foundation of our legal tradition’” are not valid secular
purposes, id. at 102a (citation omitted). In the court’s view,
the prior displays “imprinted the [petitioners’] purpose from
the beginning, with an unconstitutional taint observed not
only by this court, but by anyone acquainted with this
litigation.” Jd. at 105a.
The district court also held that the courthouse displays
had the primary effect of advancing religion. “Given the
religious nature of [the Ten Commandments],” the district
court explained, observers will perceive the government as
“promot[ing] that one religious code as being on a par with
our nation’s most cherished secular symbols and documents”
and of “foundational value to our shared history as citizens.”
Pet. App. 108a-110a.
2. a. A divided court of appeals affirmed. Pet. App. la-
95a. The majority ruled that petitioners’ “predominate
purpose” for the displays, id. at 18a, was invalid because of
the “lack of a demonstrated analytical or historical connec-
tion” between the Ten Commandments and the other docu-
ments in the display, id. at 27a. The court considered evi-
4
dence that the Ten Commandments did, in fact, influence the
development of American law to be irrelevant because
“th[{at] evidence does not appear in the actuai display of the
Ten Commandments.” Jd. at 29a. The court further rea-
soned that the history of the displays “strongly indicated
that the primary purpose was religious.” /d. at 42a.
With respect to whether the display had the effect of en-
dorsing religion, no majority opinion issued for the court.
See Pet. App. 51a (Judge Gibbons’ concurrence limited to the
purpose inquiry). Judge Clay expressed his view that “the
displays convey a message of religious endorsement because
of the complete lack of any analytical connection between the
Ten Commandments and the other patriotic documents and
symbols.” Jd. at 46a. In his view, the Ten Commandments
“stick[] out in the display like a proverbial ‘sore thumb,’”
such that “a ‘reasonable person will think religion, not
history.’” Jd. at 47a (citation omitted).
b. Judge Ryan dissented. Pet. App. 52a-95a. He would
have held that the secular purposes identified by petitioners
are valid, because “[t]he influence of religion upon American
law and government is a fact of American history and
politics that has been widely recognized by scholars, jurists,
legislators, presidents, and, not least, the Founders them-
selves.” Jd. at 64a. In his view, evidence of the Ten Com-
mandments’ historical influence need not be included in the
display itself because “[glovernment monuments and dis-
plays appear in a context in which the displays must speak
for themselves, for they do not present an opportunity to
attach lengthy disclaimers and statements of purpose.” Jd.
at 8la. Judge Ryan also rejected the majority’s conclusion
that a short “history of unconstitutional displays” could be
“used as a sword to strike down an otherwise constitutional
display.” Jd. at 87a. With respect to endorsement, Judge
Ryan stressed that
5
[t}he history and ubiquity of the Ten Commandments in
public buildings throughout the country * * * con-
firm[s] the obvious: The inclusion of the Ten Command-
ments in these displays did nothing more than acknowl-
edge the indisputable historical role of religion, and espe-
cially the cat.ons of the Decalogue, as one of many prin-
ciples, ideas, values, and impulses that, taken together,
influenced the founders of this republic in shaping our
law and government.
Id. at 93a-94a. |
3. The Sixth Circuit denied rehearing en banc, Pet. App.
163a-164a, with Chief Judge Boggs and Judge Batchelder
dissenting. Jd. at 17la-176a. Chief Judge Boggs objected to
the panel’s requirement of “‘analytical or historical connec-
tion’ between the religious item and other, secular items in
the displays.” /d. at 172a (citation omitted). The dissent also
rejected the notion that the Counties’ prior displays tainted
the display at issue, reasoning that governments “should be
free to take instruction from prior decisions or arguments,
and thus to eschew, or move away from, practices that are
contrary to law.” Jd. at 174a.
SUMMARY OF ARGUMENT
This Court has twice considered and twice upheld the
inclusion of a religious symbol in a governmental display
commemorating a variety of influences on the Nation’s his-
tory and culture. Petitioners’ inclusion of the Ten Com-
mandments in a display that acknowledges multifarious
influences on the development of American law should like-
wise be upheld. Justices of this Court, decisions of lower
courts, and the writings of countless historians and academ-
ies have long recognized the significant influence that the
Ten Commandments have had on the development of Ameri-
can law. Acknowledging that influence as part of a broader
display memorializing historic contributions to American law
6
and government serves the valid secular purpose and secular
effect of educating persons about the Nation’s history and
celebrating its heritage. Indeed, it is commonplace for
courthouses and capitol buildings to include commemorative
displays of legal, political, and cultural history, and that
background tradition informs how displays like petitioners
are reasonably perceived. Moreover, acknowledging that a
document with religious significance also played an impor-
tant role in the development of secular law in no way under-
mines or dilutes the religious significance of that document.
As this Court has repeatedly recognized, the political and
legal history of the United States is infused with religious
influences, and the Establishment Clause does not require
government to ignore or minimize that reality. Govern-
mental commemorations of history, heritage, and culture
properly need not exclude references to religious influences.
To hold, as the court of appeals did here, that any acknowl-
edgment of religious history must be accompanied by elabo-
rate disclaimers or explanations bespeaks a fundamental
hostility to or suspicion of religion that has no place in Estab-
lishment Clause jurisprudence.
Finally, the court of appeals’ conclusion that petitioners’
prior displays and the litigation surrounding them indelibly
tainted the current display is fundamentally flawed. First,
the unconstitutionality of the initial display is not obvious
and, in any event, the display at issue bears little resem-
blance to the aspects of the prior displays that troubled
respondents. Second, governmental officials are presumed
to adhere prospectively to their constitutional duties and,
accordingly, courts should be reluctant to equate past con-
duct with a present invidious purpose to defy constitutional
limits. The Establishment Clause inquiry should turn upon
the objective purpose served by the display as a whole, not
subjective motivation. While the always elusive hunt for
subjective purposes does much to promote litigation, it does
7
little to promote Establishment Clause values in the context
of passive displays in courthouses.
ARGUMENT
A COURTHOUSE DISPLAY OF THE TEN COM-
MANDMENTS AS ONE OF MULTIPLE INFLUENCES
ON THE DEVELOPMENT OF AMERICAN LAW IS
CONSISTENT WITH THE ESTABLISHMENT CLAUSE
A. Religious Faith Has Played A Defining Role In The
History Of The United States
“{Rjeligion has been closely identified with our history
and government.” School Dist. of Abington Township v.
Schempp, 374 U.S. 203, 212 (1963). In fact, the deep-seated
faith of many of the Framers laid the philosophical ground-
work for the unique governmental structure they adopted.
“The fact that the Founding Fathers believed devotedly that
there was a God and that the unalienable rights of man were
rooted in Him is clearly evidenced in their writings, from the
Mayflower Compact to the Constitution itself.” Jd. at 213.
The Nation’s religious roots found expression as well in
the system of laws adopted by the federal and state govern-
ments. In particular, it is “undeniable * * * that the Ten
Commandments have had a significant impact on the devel-
opment of secular legal codes of the Western World,” in-
cluding the United States. Stone v. Graham, 449 U.S. 39, 45
(1980) (per curiam) (Rehnquist, J., dissenting). Indeed, it is
widely recognized as a matter of
historical fact that the Ten Commandments has served
over time as a basis for our national law. * * * [Al]t
least to the extent that the Commandments established
ethical or moral principles, they were expressions of
universal standards of behavior common to all western
societies. It was agreed that these moral standards, as
influenced by the Judeo-Christian tradition, have played
a large role in the development of the common law and
8
have formed a part of the moral background for the
adoption of the national constitution.
State v. Freedom from Religion Found., Inc., 898 P.2d 1013,
1024 (Colo. 1995), cert. denied, 516 U.S. 1111 (1996).”
At the most basic level, the Ten Commandments underlay
the common law prohibitions on murder, adultery, theft,
2 See Letters of John Quincy Adams, to His Son, on the Bible and Its
Teachings 61 (James M. Alden ed. 1850) (“The law given from Sinai was a
civil and municipal as well as a moral and religious code; it contained many
statutes * * * of universal application—laws essential to the existence of
men in society, and most of which have been enacted by every nation,
which ever professed any code of laws.”); City of Elkhart v. Books, 532
U.S. 1058, 1061 (2001) (Rehnquist, C.J., Scalia & Thomas, JJ., dissenting
from denial of a writ of certiorari) (the Ten Commandments “have made a
substantial contribution to our secular legal codes”); County of Allegheny
v. ACLU, 492 U.S. 573, 652 (1989) (Stevens, J., concurring in part and
dissenting in part) (courthouse display recognizing Moses with the Ten
Commandments as a foundational lawgiver does not violate the Establish-
ment Clause); Edwards v. Aguillard, 482 U.S. 578, 594 (1987) (rejecting
the suggestion that “the Ten Commandments played an exclusively relig-
ious role in the history of Western Civilization”); Griswold v. Connecticut,
381 U.S. 479, 529 n.2 (1965) (Stewart, J., dissenting) (noting the nexus
between “most criminal laws” and the Ten Commandments); McGowan v
Maryland, 366 U.S. 420, 462 (1961) (Frankfurter, J., concurring) (“State
prohibitions of murder, theft and adultery reinforce commands of the
decalogue.”); Van Orden v. Perry, 351 F.3d 173, 181 (5th Cir. 2003) (noting
the Ten Commandments’ “extraordinary influence” on “the civil and crimi-
nal laws of this country,” which “has been repeatedly acknowledged by the
Supreme Court and detailed by scholars” and has had “influence upon
ethics and the ideal of a just society”), cert. granted, 125 S. Ct. 346 (2004);
Freethought Soc’y v. Chester County, 334 F.3d 247, 267 (3d Cir. 2003)
(there is a “well documented history” that “the Ten Commandments have
an independent secular meaning in our society because they are regarded
as a significant basis of American law and the American polity, including
the prohibitions against murder and blasphemy”); Books v. City of Elk-
hart, 235 F.3d 292, 302 (7th Cir. 2000) (“The text of the Ten Command-
ments no doubt has played a role in the secular development of our society
and can no doubt be presented by the government as playing such a role in
our civic order.”), cert. denied, 532 U.S. 1058 (2001); Anderson v. Salt
Lake City Corp., 475 F.2d 29, 33-34 (10th Cir.) (the Ten Commandments
have “substantial secular attributes” and are a “foundation for law”), cert.
denied, 414 U.S. 879 (1973).
9
blasphemy, and perjury, which American law carried
forward.” The Sunday Closing Laws upheld by this Court in
McGowan v. Maryland, 366 U.S. 420 (1961), likewise are
directly traceable to the Fourth Commandment to keep the
Sabbath day. Jd. at 470-495; see City Cowncil v. Benjamin,
33 S.C.L. 508, 523 (S.C. Ct. App. 1848); Kowntz v. Price, 40
Miss. 341 (Miss. 1866). That same Commandment underlies
the constitutional provision that excepts Sundays from the
ten-day period for exercise of the presidential veto. U.S.
Const. Art. I, § 7, Art. VII.*
At a more general level, the Ten Commandments reflect
the historical reality that many early efforts at regulating
human conduct had religious origins. In fact, in 1997, the
House and Senate passed concurrent resolutions acknowl-
edging that (i) “the Ten Commandments have had a signifi-
cant impact on the development of the fundamental legal
principles of Western Civilization,” (ii) “the Ten Command-
3 See, eg., 1 William Blackstone, Commentaries on the Laws of
England: of the Rights of Persons 54 (1765) (Univ. of Chi. Press 1979)
(with respect to malum in se crimes like murder, theft, and perjury, the
legislature “acts only . . . in subordination to the great lawgiver,
transcribing and publishing his precepts”); 6 The Works of John Adams,
Second President of the United States 9 (Little & Brown eds., 1851) (“If
‘Thou shalt not covet,’ and ‘Thou shalt not steal,’ were not commandments
of Heaven, they must be made inviolable precepts in every society, before
it can be civilized or made free.”).
4 See W. Walsh, History of Anglo-American Law 85 (1932) (W. Gaunts
& Sons, 2d ed. 1993) (the 1641 Massachusetts “Body of Liberties” made
the Ten Commandments “the basis of the criminal law”); Amicus Nat’
Legal Found. Br. 3-23, ACLU v. McCreary County, No. 01-5935 (6th Cir.)
(chronicling the influence of each Commandment on colonial law governing
blasphemy, profanity, idolatry, Sunday closings, murder, adultery, theft,
perjury, defamation, and election fraud); Hollywood Motion Picture
Equip. Co. v. Furer, 105 P.2d 299, 301 (Cal. 1940) (“‘Thou shalt not steal’
applies with equal force and propriety to the industrialist of a complex
civilization as to the simple herdsman of ancient Israel.”) (citation omit-
ted); Watts v. Gerking, 228 P. 135, 141 (Or. 1924) (“‘Thou shalt not bear
false witness’ is a command of the Decalogue, and that forbidden act is
denounced by statute as a felony.”) (citation omitted).
10
ments set forth a code of moral conduct, observance of which
is universally acknowledged to promote respect for our
system of laws and the good of society,” and (iii) “the Ten
Commandments are a declaration of fundamental principles
that are the cornerstones of a fair and just society.” S. Con.
Res. 13, 105th Cong., Ist Sess. (1997); H.R. Con. Res. 31,
105th Cong., Ist Sess. (1997).°
B. Official Acknowledgment And Recognition Of The Ten
Commandments’ Influence On American Legal History
Comport With The Establishment Clause
1. Official acknowledgments of religion’s role in the
Nation’s history are commonplace
There “is an unbroken history of official acknowledgment
by all three branches of government of the role of religion in
American life from at least 1789,” Lynch v. Donnelly, 465
U.S. 668, 674 (1984), and “references to the Almighty [have]
run through our laws, our public rituals, [and] our ceremo-
nies” since the founding of the Country. Zorach v. Clauson,
343 U.S. 306, 313 (1952). The First Congress—the same
Congress that drafted the Establishment Clause—adopted a
policy of selecting a paid chaplain to open each session of
Congress with prayer. See Marsh v. Chambers, 463 U.S.
783, 787 (1983). That Congress, the day after the Establish-
ment Clause was proposed, also urged President Washing-
— 5 See generally D. Davis, Religion and the Continental Congress,
1774-1789 (2000); Joseph Story, Value and Importance of Legal Study
(Aug. 25, 1829), reprinted in W. Story, The Miscellaneous Writings of
Joseph Story 533-535 (1852) (connecting natural law and a person’s “duties
to God,” which sit “at the foundation of all other laws”).
6 See Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301, 2317
(2004) (Rehnquist, C.J., concurring in the judgment) (“Examples of patri-
otic invocations of God and official acknowledgments of religion’s role in
our Nation’s history abound.”) (quoting H.R. Rep. No. 1693, 83d Cong., 2d
Sess. 2 (1954)); id. at 2320 (“From the time of our earliest history our
peoples and our institutions have reflected the traditional concept that our
Nation was founded on a fundamental belief in God.”).
11
ton “to proclaim ‘a day of public thanksgiving and prayer, to
be observed by acknowledging with grateful hearts the
many and signal favours of Almighty God.’” Lynch, 465 U.S.
at 675 n.2 (citation omitted). Since the time of Chief Justice
Marshall, this Court has opened its sessions with “God save
the United States and this Honorable Court.” Engel v.
Vitale, 370 U.S. 421, 446 (1962) (Stewart, J., dissenting). In
1865, Congress authorized the inscription of “In God we
trust” on United States coins. Act of March 3, 1865, ch. 100,
§ 5, 13 Stat. 518. In 1956, Congress made “In God we trust”
the National Motto, see 36 U.S.C. 302, and directed that it be
inscribed on all currency, 31 U.S.C. 5112(d)(1).
Because of the Decalogue’s influential role in the develop-
ment of American law, reproductions and representations of
the Ten Commandments have been commonly employed
across the Country to symbolize both the rule of law itself, as
well as the role of religion in the development of American
law. Moses with the Ten Commandments appears, along-
side other historic lawgivers, in a frieze within the chamber
of this Court, as well as on the east facade of the Supreme
Court building. A statue with Moses holding the Ten Com-
mandments appears in the rotunda of the Library of Con-
gress, while the main reading room includes a painting of a
woman raising her hands in prayer, with the Ten Com-
mandments by her side. The National Archives has em-
bossed on the marble floor of the main display room a bronze
seal that includes a depiction of the Ten Commandments.
Similar displays of the Commandments appear at the Ronald
Reagan International Trade Building in Washington, D.C.,
as well as other federal buildings and courthouses across
the Country. An informal and non-exhaustive survey re-
veals that displays of the Ten Commandments appear in
courthouses, capitols, and other public buildings across the
Country. See App., infra; see also Pet. App. 175a; Pet. 8-13
(discussing numerous lower court cases addressing displays
12
of the Ten Commandments by state and local governments).
Indeed, “{i]t is unsurprising that a Nation founded by relig-
ious refugees and dedicated 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 in the judgment).
And “{ejradicating such references would sever ties to a
history that sustains this Nation even today.” /bid.
2. The Establishment Clause permits official ac-
knowledgment of the Ten Commandments’ contri-
bution to the Nation’s legal heritage
a. Similar displays that acknowledge religious
influences have been upheld
This Court has twice considered and twice sustained gov-
ernmental displays that integrate overtly religious symbols
and secular symbols of the Nation’s heritage and culture. In
Lynch v. Donnelly, supra, the Court held that the Establish-
ment Clause permits a city to include a nativity scene as part
of a display that comprised “many of the figures and decora-
tions associated with Christmas,” 465 U.S. at 671, including a
Santa Claus house, a Christmas tree, cutout figures of a
clown, elephant and teddy bear, and a talking wishing well,
id. at 671, 685 n.12; id. at 695 n.1 (Brennan, J., dissenting).
Erecting the display to “depict the historical origins of [a]
traditional event long recognized as a National Holiday,” the
Court concluded, serves a valid, secular goal. Jd. at 680. In
so holding, the Court refused to “focus[] almost exclusively
on the creche,” considering it sufficient that the display as a
whole “principally take[s] note of a significant historical re-
ligious event long celebrated in the Western World.” Jbid.
The Court further held that inclusion of the creche in the
display did not have the effect of advancing religion because
any benefit to “one faith or religion or to all religions[] is
indirect, remote and incidental,” and “display of the créche is
no more an advancement or endorsement of religion than the
13
Congressional and Executive recognition of the origins of
the Holiday itself as ‘Christ’s Mass,’ or the exhibition of
literally hundreds of religious paintings in governmentally
supported museums.” 465 U.S. at 683. The court stressed
that the creche is a “passive symbol,” indistinguishable from
“a host of other forms of taking official note of * * * our
religious heritage,” id. at 686, that do not violate the
Establishment Clause, id. at 685-686. While such a display
“advances religion in a sense,” the Court explained that “our
precedents plainly contemplate that on occasion some
advancement of religion will result from governmental
action.” Id. at 683. To hold otherwise and to forbid passive
“acknowledgment of the religious heritage” of the Nation
“would be a stilted overreaction contrary to our history and
to our holdings.” Jd. at 686.
Likewise, in County of Allegheny, supra, the Court sus-
tained the inclusion of a Menorah as part of a holiday display
that included a Christmas tree and a sign saluting liberty.
492 U.S. at 614. A plurality held that, considered as a whole,
the display did not amount to an “endorsement of religious
faith but simply a recognition of cultural diversity.” Jd. at
619. Justice O’Connor concurred, explaining that “(a]lthough
the religious and indeed sectarian significance of the meno-
rah is not neutralized,” the “particular physical setting” in
which the menorah appeared “changes what viewers may
fairly understand to be the purpose of the display—as a
typical museum setting, though not neutralizing the religious
content of a religious painting, negates any message of en-
dorsement of that content.” Jd. at 635 (internal quotation
marks and citations omitted). Justice Kennedy, along with
the Chief Justice, Justice White, and Justice Scalia, also
concluded that the display was constitutional, because “the
city and county sought to do no more than celebrate the
season * * * and to acknowledge * * * the historical
background and the religious, as well as secular, nature of
14
the Chanukah and Christmas holidays.” Jd. at 663 (internal
quotation marks omitted).
Moreover, in Stone, supra, the Court recognized that the
Ten Commandments may constitutionally be employed, even
in the school context, when “integrated into the * * *
curriculum, where the Bible may constitutionally be used in
an appropriate study of history, civilization, ethics, compara-
tive religion, or the like.” 449 U.S. at 42. In Stone, the Court
held unconstitutional a state statute that required the post-
ing of the Ten Commandments by themselves on the wall of
public school classrooms. But, as the Court later explained,
Stone “did not mean that no use could ever be made of
the Ten Commandments, or that the Ten Commandments
played an exclusively religious role in the history of Western
Civilization.” Edwards v. Aguillard, 482 U.S. 578, 594
(1987); see Lynch, 465 U.S. at 691 (O’Connor, J., concurring)
(although the posting of the Ten Commandments in Stone
“plainly had some secular objectives, such as instilling most
of the values of the Ten Commandments and illustrating
their connection to our legal system,” the state law there
was unconstitutional because those secular purposes were
“dominated by religious purposes”) (citations omitted); City
of Elkhart v. Books, 582 U.S. 1058 (2001) (Rehnquist, C.J.,
Scalia & Thomas, JJ., dissenting from the denial of certio-
rari) (“[W]e have never determined, in Stone or elsewhere,
that the Commandments lack a secular application.”).
b. Petitioners’ display serves a legitimate secular
purpose
For the same reasons this Court upheld the display of a
creche in Lynch and a menorah in County of Allegheny,
petitioners’ integrated display of the Ten Commandments is
consistent with the Establishment Clause. As in those cases,
petitioners’ recognition of religious influences on legal his-
tory serves a valid secular purpose and does not have the
15
effect of advancing or inhibiting religion. See, e.g., Agostini
v. Felton, 521 U.S. 203, 222-223 (1997).
Governmental action runs afoul of the Establishment
Clause’s purpose inquiry only if it is “entirely motivated by a
purpose to advance religion.” Wallace v. Jaffree, 472 U.S.
38, 56 (1985); see Lynch, 465 U.S. at 680 (law invalid if “there
[is] no question” that it is “motivated wholly by religious
considerations”). No such showing was made here. Petition-
ers’ display of nine separate historical documents and sym-
bols that have played _a role in the development of American
law and government—the Magna Carta, the Mayflower
Compact, the Declaration of Independence, the Bill of
Rights, the Preamble to the Kentucky Constitution, the Na-
tional Motto, Lady Justice, the Star Spangled Banner, and
the Ten Commandments—serves the valid secular purpose
of memorializing and educating the public about the roots of
the Nation’s legal system. Both the district court (Pet. App.
101a-102a) and the court of appeals (id. at 17a-18a) found
that petitioner designed its display, inter alia, “to educate
the citizens of the county regarding some of the documents
that played a significant role in the foundation of our system
of law and government.” That, in fact, is precisely how the
explanatory plaque that accompanies the display describes
its purpose, labeling the collection “The Foundations of
American Law and Government Display.” Jd. at 10a. The
prefatory plaque further explains that the Ten Command-
ments are included because they “have profoundly influ-
enced the formation of Western legal thought and the forma-
tion of our country” and they provide “the moral background
of the Declaration of Independence and the foundation of our
legal tradition.” Ibid. (citation omitted).’
7 Petitioners’ purposes also included a desire “to erect a display con-
taining the Ten Commandments that is constitutional,” “to demonstrate
that the Ten Commandments were part of the foundation of American
Law and Government,” and to acknowledge the Ten Commandments’
16
Memorializing the confluence of secular and religious
influences that gave birth to the American legal system is a
valid secular purpose. Lynch made clear that the Establish-
ment Clause does not proscribe the government from “tak-
ing official note of * * * our religious heritage,” 465 U.S. at
686, or depicting with a religious symbol “the historical
origins” of attributes of the Nation’s character, id. at 680.
Such “public acknowledgment of the [Nation’s] religious
heritage long officially recognized by the three constitutional
branches of government,” id. at 686, is consistent with the
Establishment Clause because it simply takes note of the
historical facts that “religion permeates our history,” Ed-
wards v. Aguillard, 482 U.S. 578, 607 (1987) (Powell, J., con-
curring), and that religious faith played a singularly influen-
tial role in the settlement of this Nation, in the founding of
its government, and particularly in the development of its
laws. “Neither government nor this Court can or should
ignore the significance of the fact that a vast portion of our
people believe in and worship God and that many of our
legal, political and personal values derive historically from
religious teachings.” Schempp, 374 U.S. at 306 (Goldberg, J.,
concurring).
While the Establishment Clause forbids “sponsorship,
financial support, and active involvement of the sovereign in
religious activity,” Walz v. Tax Comm’n, 397 U.S. 664, 668
(1970), the Clause was never intended to “sweep away all
government recognition and acknowledgment of the role of
religion in the lives of our citizens,” Cownty of Allegheny,
significance in providing “the moral background for the Declaration of
Independence and the foundation of our legal tradition.” Pet. App. 17a
(citation omitted). The court of appeals properly ruled (id. at 18a-21a) that
the latter two purposes were facially constitutional because “Stone estab-
lished no per se rule that displaying the Ten Commandments in an educa-
tional setting is unconstitutional” (id. at 20a). And the court correctly
characterized the first purpose as a desire “simply to comport govern-
mental conduct * * * with the law.” /d. at 19a.
17
492 U.S. at 623 (O’Connor, J., concurring), or to compel
official disregard of or stilted indifference to the Nation’s
religious heritage in passive governmental displays per-
taining to American history and culture. “(T]Jo do so would
exhibit not neutrality but hostility to religion.” Ibid.
Indeed, this Court itself has “asserted pointedly” on five
different occasions that “[w]e are a religious people whose
institutions presuppose a Supreme Being.” Lynch, 465 U.S.
at 675; Marsh, 463 U.S. at 792; Walz, 397 U.S. at 672;
Schempp, 374 U.S. at 213; Zorach, 343 U.S. at 313. The
Establishment Clause does not deny petitioners the equiva-
lent capacity to acknowledge officially the pivotal role that
religion has played in developing the Nation’s laws and gov-
ernmental institutions.
The court of appeals nevertheless ruled that petitioners’
“actual purposes were religious.” Pet. App. 23a. That con-
clusion rests on four flawed premises.
First, by “focusing” its purpose inquiry “almost exclu-
sively on the” Ten Commandments the court of appeals
“plainly erred.” Lynch, 465 U.S. at 680. The court repeat-
edly found fault, not with the display as a whole, but with
petitioners’ perceived rationale for including the Ten Com-
mandments in the display. Pet. App. 27a, 32a-33a. But a
“(flocus exclusively on the religious component of any activ-
ity would inevitably lead to its invalidation under the Es-
tablishment Clause.” 465 U.S. at 680. The relevant consid-
eration is whether the display as a whole serves a valid
secular purpose. I/bid. (holiday display as a whole “princi-
pally [took] note of a significant historical religious event
long celebrated in the Western World”); id. at 691
(O’Connor, J., concurring) (district court erred in attempting
to “ascertain the city’s purpose in displaying the creche sepa-
rate and apart from the general purpose in setting up the
display”).
18
Likewise, in County of Allegheny, the Court analyzed the
“combined display of the tree, the sign, and the menorah,”
rather than focusing on the presence of the Menorah or the
specific reasons for its inclusion. 492 U.S. at 616. Moreover,
the Court stressed that the inclusion in the display of an
“explanatory plaque,” like the one posted by petitioners here
(Pet. App. 9a-10a), confirmed that the display served “not
[as] an endorsement of religious faith but simply a recogni-
tion of cultural diversity.” 492 U.S. at 619; see id. at 625
(O'Connor, J., concurring) (religious symbol “had to be
viewed in light of the total display of which it was a part”);
see also Zelman v. Simmons-Harris, 536 U.S. 639, 656-657
(2002).
Indeed, the court of appeals’ isolated scrutiny of peti-
tioners’ purpose for displaying the Ten Commandments
erroneously imports a “least religious means” test into the
Establishment Clause, a proposition this Court soundly re-
jected in Lynch. See 465 U.S. at 681 n.7 (summarily dis-
missing the argument that “the city’s objectives could have
been achieved without including the creche in the display”)
(citation omitted); see also Cownty of Allegheny, 492 U.S. at
636 (O’Connor, J., concurring) (existence of “a more secular
alternative symbol” is “irrelevant” and “too blunt an instru-
ment for Establishment Clause analysis”) (citation omitted).°
* For the same reasons, the court of appeals’ objection (Pet. App. 32a,
34a) that petitioners’ display omitted “other influences” on the law is mis-
placed. The Establishment Clause imposes no such all-or-nothing man-
date. The County of Allegheny could have chosen from a host of symbols,
other than che menorah, that would have served equally well to com-
memorate liberty or the holiday season. It certainly did not exhaust the
universe of potentially relevant non-religious symbols. Nevertheless, the
fact that the County chose the menorah did not suggest to this Court that
the County was “utterly ignoring (and implicitly denying) all other
influences,” id. at 32a, on the season. The question under the Establish-
ment Clause is not whether other symbols might have been chosen or
could be added to the display. Rather, the controlling question is whether
the display as a whole serves a secular purpose. A display memorializing
19
Second, the court’s insistence that the display itself must
detail the “analytical or historical connection” between the
religious symbol and other components of the display (Pet.
App. 27a) and include “evidence” of the Ten Commandments’
historical influence (id. at 29a) lacks any foundation in law or
logic. No such exegesis was required in Lynch or County of
Allegheny. In Lynch, the connection between a talking
wishing well, clown cut-outs, and a creche was not explained,
beyond the posting of a sign reading “Seasons Greetings.”
465 U.S. at 671, 685 n.12. In County of Allegheny, the only
connection between the Christmas tree and the Menorah
was a city sign advising passers-by that “the city of Pitts-
burgh salutes liberty.” 492 U.S. at 582 (plurality opinion).
And American currency lacks any explanation at all of the
linkage between “In God We Trust” and the outline of
Monticello or the profile of President Lincoln. Petitioners’
lengthy discussion of the unifying purpose of its display—
documentation of historic influences on the development of
law, including an explanation of the Ten Commandments’
role—far exceeds the level of explanation and integration
offered in those cases and “confirm[s]” the secular purpose of
the overall display that its visible content and “context
already reveal[].” Jd. at 619.
Furthermore, the court of appeals’ approach, which treats
the inclusion in a display of a religious symbol—and only the
religious symbol—as so inherently suspect as to require
some sort of curative instruction bespeaks a level of hostility
to religion that is antithetical to the very purpose of the
Establishment Clause. Simply “because it’s religious” is an
insufficient reason to subject acknowledgments of religious
history in a broadly diverse display to special disabilities.
Good News Club v. Milford Cent. Sch., 583 U.S. 98, 122
some of the important influences on the development of American law
does exactly that, even if it does not exhaustively document every possible
religious or secular influence on the law.
20
(2001) (Scalia, J., concurring) (citation omitted). Government
need not—indeed, may not—treat religion “as subversive of
American ideals.” McDaniel v. Paty, 435 U.S. 618, 641
(1978) (Brennan, J., concurring in the judgment).
Nor does the Sixth Circuit’s insistence on elaborate exe-
gesis make practical sense. Petitioners’ collection of historic
documents pertaining to the law was displayed in a court-
house. That is a site frequented by adults, who are capable
of discerning a secular common theme from a display that
contains multiple historical documents and that is promi-
nently labeled “The Foundations of American Law and Gov-
ernment Display.” Pet. App. 10a. Indeed, the courthouse
setting lends itself to a focus on the Ten Commandments’
character as a code of conduct, as opposed to its undeniable
religious character. Cf. King v. Richmond County, 331 F.3d
1271, 1282 (11th Cir. 2003) (“Much of our private and public
law derives from the[] final six commandments.”). In fact,
as a matter of common practice, government buildings like
courthouses and statehouses routinely display historic docu-
ments, art, and similar displays about the law, government,
traditions, and culture of the citizenry.’ Most persons thus
are not surprised to find displays like petitioners’ in govern-
ment buildings and they perceive such displays as a *ivics
analog to museum presentations.” In that context, acknowl-
edging religious influences on history on equal terms with
other influences demonstrates neutrality, not endorsement,
and further curricular explanation or integration is not
% The McCreary County courthouse contains 58 historical documents
posted in the Judge’s office, 41 in the waiting room, 124 in the side en-
trance to the courthouse, 33 in the fiscal courtroom, and 28 in the confer-
ence room Pet. 6. The Pulaski County courthouse likewise posts numer-
ous historical documents throughout the building. /bid.
10 See Lynch, 465 U.S. at 694 (O’Connor, J., concurring); id. at 683 (“the
exhibition of literally hundreds of religious paintings in governmentally
supported museums” does not constitute the endorsement of religion);
County of Allegheny, 492 U.S. at 595 (Blackmun & Stevens, JJ.) (same).
21
constitutionally required. Cf. Board of Educ. v. Mergens,
496 U.S. 226, 249 (1990) (“Because the Act on its face grants
equal access to both secular and religious speech, we think it
clear that the Act’s purpose was not to ‘endorse or disap-
prove of religion.’”) (citation omitted). Courts have few tools
to parse displays and determine whether those components
of a secular display with religious, as well as secular, signifi-
“ance are given too much prominence. It would be akin to
faulting a public museum’s display of early European paint-
ings for having too many religious subjects. Instead, when a
display has an overall secular theme, courts should not treat
religious references as so inherently abnormal or unnatural
as to “stick[] out * * * like a proverbial sore thumb.” Pet.
App. 47a (citation omitted). Treating only those components
of a secular display that have both religious and secular
aspects as uniquely disfavored and treating facts about the
Nation’s and government’s religious origins as uncomfort-
able past that must be ignored or at least minimized would
stand the First Amendment on its head."
Third, the court of appeals reasoned (Pet. App. 23a) that
an illicit religious purpose must be at work because the court
disagreed (at great length, see id. at 27a-32a) with peti-
tioners’ view that the Ten Commandments influenced the
writing of the Declaration of Independence (id. at 29a). That
misses the point. Whatever the precise nexus between the
11 For the samc reason, Judges Clay’s and Martin’s fear (Pet. App.
169a) that upholding petitioners’ display would open the door to a display
consisting of “a crucifix or the Lord’s Prayer, so long as surrounded by the
Magna Carta, the Declaration of Independence, the Star Spangled Banner
and, perhaps, excerpts from the Internal Revenue Code” is misplaced.
The fact that a display is uncommonly silly or disunified does not render it
an establishment of religion. Indeed, there is no sound basis for assuming
that a reasonable observer would perceive such a display as a covert en-
dorsement of the Lord’s Prayer, rather than simply as a confusing me-
lange of images. On the other hand, a pervasively religious display would
not lose that character by the random insertion of a secular document or
symbol.
22
Ten Commandments and the Declaration of Independence,
the only relevant inquiry under the purpose prong of the
Establishment Clause inquiry is whether the display was
“entirely motivated by a purpose to advance religion.”
Wallace, 472 U.S. at 56; see Lynch, 465 U.S. at 680. Given
that (i) petitioners entitled their display “The Foundations of
American Law and Government Display”; (ii) petitioners
explained to the public that the Ten Commandments were
included in that display because they “have profoundly influ-
enced the formation of Western legal thought and the forma-
tion of our country,” and “provide the moral background of
the Declaration of Independence and the foundation of our
legal tradition,” Pet. App. 10a; and (iii) numerous Justices of
this Court, judges, academics, and historians have acknowl-
edged the influence of the Ten Commandments on American
law, see pp. 7-10, supra, the court’s debate over the Ten
Commandments’ particularized impact on the Declaration of
Independence does nothing to dispel petitioners’ secular
purpose for displaying the Ten Commandments here.”
Fourth, the court of appeals concluded that petitioners’
predecessor displays and the attendant litigation “imprinted
the defendants’ purpose, from the beginning, with an uncon-
stitutional taint” (Pet. App. 41a), and “strongly indicated
that the primary purpose was religious” (id. at 42a). That
rationale is mistaken on multiple levels.
As an initial matter, the predicate assumption that peti-
tioners’ first courthouse display of the Ten Commandments
2 Having said that, there is substantial force to petitioners’ assertion
that the Ten Commandments influenced the Declaration of Independence.
As the Court has recognized, “[tJhe fact that the Founding Fathers be-
lieved devotedly that there was a God”—the First Commandment—“and
that the unalienable rights of man”—the rights to life, liberty, property,
and the pursuit of happiness reflected in the Sixth, Seventh, Eighth,
Ninth, and Tenth Commandments—“were rooted in Him is clearly evi-
denced in their writings, from the Mayflower Compact to the Constitution
itself.” Schempp, 374 U.S. at 213.
23
was so clearly unconstitutional as to reflect an impermissible
and indelible religious motivation is wrong. While a closely
divided, per curiam opinion of this Court previously had
struck down a display of the Ten Commandments in public
school classrooms, Stone v. Graham, supra, that holding
does not necessarily extend to courthouses because the
Court “has been particularly vigilant in monitoring com-
pliance with the Establishment Clause in [public] elementary
and secondary schools.” Edwards, 482 U.S. at 583-584; com-
pare Lee v. Weisman, 505 U.S. 577, 592 (1992) (prayer at
secondary school graduation unconstitutional), with Marsh,
supra (upholding prayer in state legislatures). Thus the
constitutionality of a display of the Ten Commandments in
non-school settings—especially in courthouses where his-
toric symbols of law are commonplace ard where the Ten
Commandments’ character as a code of ccnduct is accentu-
ated—remains an open question. Petitioners, moreover,
acted against a legal backdrop in which three Justices of this
Court had expressed the view that “a carving of Moses hold-
ing the Ten Commandments, if that is the only adornment on
a courtroom wall, conveys an equivocal message, perhaps of
respect for Judaism, for religion in general, or for law.”
County of Allegheny, 492 U.S. at 652 (Stevens, J., concurring
in part and dissenting in part) (emphasis added). In addition,
the Court had upheld prayer in state capitols, Marsh, supra,
and has repeatedly stated that acknowledgments of the
Nation’s religious history in the National Motto (“In God We
Trust”), on currency, and in the opening cry of court sessions
(“God Save the United States and this Honorable Court”),
are constitutional. See, e.g., Newdow, 124 S. Ct. at 2317-2319
(Rehnquist, C.J., concurring in the judgment); Lynch, 465
U.S. at 674-679. Furthermore, a number of courts have
upheld government displays of the Ten Commandments.”
13 See Van Orden, 351 F.3d at 178-180; Freethought Soc’y, 334 F.3d at—
263-267; Anderson, 475 F.2d at 33-34; Freedom from Religion Found., 898
24 —_
Beyond that, context-sensitive nuance and fine line-draw-
ing are the hallmarks of this Court’s Establishment Clause
jurisprudence. For that reason, a single district court ruling
that a prior display crossed the “blurred, indistinct, and
variable barrier” between constitutional and unconstitu-
tional acknowledgments of the Nation’s religious heritage,
Lynch, 465 U.S. at 679, is too tenuous a basis on which to
predicate a charge of enduring unconstitutional motivation.
It certainly does not amount to the clear evidence generally
required to overcome the presumption that government
officials, who are sworn to uphold the Constitution, will not
deliberately flout their obligations. To hold otherwise would
have the unhealthy consequence of punishing the good faith
efforts of government officials to navigate difficult consti-
tutional shoals.”
The Sixth Circuit further erred in placing weight on peti-
tioners’ desire “to display the Ten Commandments.” Pet.
App. 40a. Putting aside the debatable proposition that such
a purpose is inherently “religious” (ibid.), the Establishment
Clause focuses on “the legislative purpose of the [display],
not the possibly religious motives of the” government offi-
cials who authorized it. Mergens, 496 U.S. at 249; see
McGowan, 366 U.S. at 469 (opinion of Frankfurter, J.). A
creche that forms part of a city’s display consistent with
Lynch should not be unconstitutional because the mayor’s
P.2d at 1025. To be sure, the interim display adopted immediately after
the filing of this suit raises additional issues. But that is also the least
relevant display because it says nothing about petitioners’ original reason
for displaying the Ten Commandments, nor does it resemble the policy at
issue now. Instead, it appears to reflect only petitioners’ response to the
filing of a lawsuit.
14 See National Archives & Records Admin. v. Favish, 124 S. Ct. 1570,
1581 (2004); Mitchell v. Helms, 530 U.S. 793, 863-864 (2000) (O’Connor, J.,
concurring) (“{I}t is entirely proper to presume that these school officials
will act in good faith.”); ef. Agostini, 521 U.S. at 226 (refusing to “presume
that * * * a full-time public employee * * * will depart from her
assigned duties and instructions and embark on religi »us indoctrination”).
25
first instinct was to display a creche, rather than a talking
wishing well, at Christmas time. The avowed purpose of the
display at issue here, as corroborated by its actual content
and design, is to document historical influences on the de-
velopment of the law, and that is the secular and constitu-
tionally proper purpose that matters under Lynch and
County of Allegheny.
Nothing in Santa Fe Independent School District v. Doe,
530 U.S. 290 (2000), is to the contrary. There, the Court
struck down a policy of student-led prayer at football games.
The Court concluded that allowing the students to vote on
retaining the invocation policy and selecting the speaker
simply perpetuated the prior practice of prayer by the Stu-
dent Chaplain before football games. Jd. at 309. The Court
did not hold, however, that past practice indelibly taints all
of the officials’ future decisions. Instead, the Court con-
cluded that the new “invocations” policy lacked any secular
purpose. /bid. (noting that the new policy had a religious
title (“Prayer at Football Games”) and that the school did
not hold a new election, pursuant to the new policy, “to
replace the results of the previous election, which occurred
under the former policy”). Furthermore, the Court also
found that the new policy had the effect of advancing relig-
ion. Ibid.
That bears no resemblance to this case. When displayed
in a courthouse, the Ten Commandments are not, like the
school prayer in Santa Fe, inherently religious—their signi-
fication is, to use Justice Stevens’ word, “equivocal.” County
of Allegheny, 492 U.S. at 652. In addition, petitioners
worked profound changes in the content and design of their
display so that the links between the policies were broken
and, whatever their underlying subjective motivations, the
objectively discernible purpose of the presentation changed
~ from a display of the Ten Commandments to a display of
varied historic influences on the development of law. See
26
3/30/01 Tr. 4 (district court finds that “the newly posted
display differs * * * fundamentally from the other one”).
Indeed, in the context of passive governmental displays in
non-school settings, an inquiry into the subjective purpose of
governmental actors rather than the objective purpose
served by the display is of dubious value. The public expects
to see in courthouses and capitol buildings representations,
symbols, and displays pertaining to the history, heritage, and
culture of the people and their government. The
predominantly adult observers of such displays understand
them to be commemorative, chosen for their historical or
sociological linkage to the particular setting, rather than as
specific endorsements of the underlying message. Govern-
ment officials may have a variety of reasons for including or
excluding certain symbols. Even an affirmative desire to
include symbols with both religious and secular significance
in a manner that is consistent with this Court’s cases and the
Nation’s history would not trench upon Establishment
Clause values. In fact, the reasonable observer is aware that
“[glovernment policies of * * * acknowledgment, and
support for religion are an accepted part of our political and
cultural heritage.” County of Allegheny, 492 U.S. at 657
(Kennedy, J., concurring in part and dissenting in part).
That is particularly true when, as here, the religious
acknowledgment is neutrally displayed in the company of
numerous secular emblems.
Accordingly, the Establishment Clause inquiry for such
displays should focus on whether the display itself—based on
its design, content, or emphasis—objectively expresses fa-
voritism for or an endorsement of religion or particular relig-
ious beliefs. Such passive displays, after all, do not attempt
to compel, direct, or regulate primary behavior. They are
entirely non-coercive. And “[iJn a pluralistic society a vari-
ety of motives and purposes are implicated” in virtually
every governmental acknowledgment of religion. Lynch, 465
27
U.S. at 680. Given the Court’s “reluctance to attribute un-
constitutional motives to the States, particularly when a
plausible secular purpose for the State’s program may be
discerned from the face of the statute,” Mueller v. Allen, 463
U.S. 388, 394-395 (1983), the high jurisprudential costs of
questioning motives are not offset by any discernible consti-
tutional gain in having the lawfulness of identical govern-
mental displays turn upon unarticulated and imperceptible
subjective purposes that are neither communicated to nor
felt in any concrete way by anyone who encounters the
passive display. Cf. United States v. O’Brien, 391 U.S. 367,
383 (1968) (it is a “fundamental principle of constitutional
adjudication” that the judiciary may not “restrain the exer-
cise of lawful power on the assumption that a wrongful pur-
pose or motive has caused the power to be exerted”).
c. Petitioners’ display has the valid secular effect
of acknowledging the Ten Commandments’
historical influence on American law
The “crucial” consideration in analyzing whether petition-
ers’ display comports with the Establishment Clause is
whether it “ha[s] the effect of communicating a message of
government endorsement or disapproval of religion” to an
objective observer. Lynch, 465 U.S. at 692; see Santa Fe,
530 U.S. at 308. The objective observer, moreover, “must be
deemed aware of the history and context of the community
and forum in which the religious display appears.” Capitol
Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780
(1995) (O’Connor, J., concurring).
15 The court of appeals did not issue a majority holding on the effect
prong of the Establishment Clause. Nevertheless, because the relevant
facts are not in dispute, the Court may wish to resolve the issue itself
rather than return petitioners to yet another round of litigation over their
display. Neither the district court nor the court of appeals grounded their
Establishment Clause ruling in the fact that petitioners chose to use a
Protestant version of the Ten Commandments, rather than a Catholic,
Jewish, or ecumenical version. If the Court were to consider that factor
28
No reasonable observer could discern an endorsement of
religion from petitioners’ display. The Ten Commandments
appear alongside and on equal footing with numerous secular
documents and symbols. Taken together, the display tells a
story about the varied historic influences on and images of
American law. Lest there be any confusion on that front, pe-
titioners took the extra step of including an explanatory
plaque and caption that advise observers that the display
documents “The Foundations of American Law and Gov-
ernment.” Pet. App. 10a."° That is precisely the type of ex-
hibit that a reasonable observer would expect to find in a
courthouse. Thus the context and the “history and ubiquity”
of the Ten Commandments’ usage as a symbol of law, Lynch,
465 U.S. at 693 (O’Connor, J., concurring), confirm the
secular theme. The endorsement analysis also must take
into account this Court’s repeated assurances that the “many .
manifestations in our public life of belief in God,” Engel, 370
U.S. at 435 n.21, far from violating the Constitution, have
become “part of the fabric of our society,” Marsh, 463 U.S. at
792.
relevant to the Establishment Clause question, it would be beneficial if the
Court, prior to remanding, could make clear that display of some versions
of the Ten Commandments (whether ecumenical or containing only Roman
Numerals) would not have the effect of endorsing religion.
16 See County of Allegheny, 492 U.S. at 619 (Blackmun, J.) (“{AJn
‘explanatory plaque’ may confirm that in particular contexts the govern-
ment’s association with a religious symbol does not represent the govern-
ment’s sponsorship of religious beliefs.”); id. at 635 (O’Connor, J.) (sign
accompanying menorah display negated any reasonable impression of
endorsement); Capitol Square, 515 U.S. at 776 (O’Connor, J., concurring in
part and concurring in the judgment) (“[TJhe presence of a sign dis-
claiming government sponsorship or endorsement on the Klan cross
* * * would make the State’s role clear to the community.”).
17 The presentation of the Ten Commandments (i) in a courthouse
frequented by adults, (ii) alongside secular documents, (iii) accompanied
by an explanatory plaque, and (iv) in a manner that does not peculiarly
profile or call attention to the religious document or even the religious
character of the document, distinguishes this case from Stone.
29
Judge Clay reasoned (Pet. App. 45a) that the display had
the effect of endorsing religion because posting the Ten
Commandments with other American historical documents
“accentuates the religious nature of the Ten Command-
ments” and will suggest that petitioners put the Command-
ments “on a par with our nation’s most cherished secular
symbols and documents.” The short answer is that this
Court drew precisely the opposite conclusion about the ef-
fect of religious symbols in multi-component displays in
Lynch and County of Allegheny, where the Court concluded
that the surrounding symbols would negate any message of
endorsement and would convey an overarching secular mess-
age about celebration of the holidays and their history.
County of Allegheny, 492 U.S. at 616; id. at 634-635
(O’Connor, J., concurring); Lynch, 465 U.S. at 681-686.
Judge Clay further reasoned (Pet. App. 46a) that the ab-
sence of “any analytical connection between the Ten Com-
mandments and the other patriotic documents and symbols”
meant that the display “convey[ed] a message of religious
endorsement.” That rationale fares no better under the ef-
fects prong than it did under the purpose prong. See pp. 19-
21, supra. First, the analytical connection is exactly the one
that numerous Justices, judges, historians, and scholars have
found—the Ten Commandments influenced the development
of American law. Second, and in any event, the conclusion
does not follow from the premise. Even if the display were
thematically disjointed, there is no logical reason to
presuppose that observers would immediately jump to the
conclusion that the display is a cieverly disguised religious
message. The more likely reaction is simply that the display
is a muddle.
Finally, Judge Clay suggested (Pet. App. 49a) that the
litigation history “bolstered the reasonable observer’s per-
ception of the state endorsement of religion.” That cannot be
right. It is one thing to impute to the reasonable observer an
30
awareness of her surroundings and familiarity with the na-
ture of the forum in which a display occurs. Pinette, 515 U.S.
at 780 (1995) (O’Connor, J., concurring in part & concurring
in the judgment). But it is quite another thing to charge the
observer with familiarity with the Federal Supplement. If
the display has the impermissible effect of endorsing relig-
ion, then it violates the Establishment Clause regardless of
whether a lawyer brings suit. And if the display does not
have that effect, then litigation—whether precedent or sub-
sequent—cannot change that. Lynch, 465 U.S. at 684-685.
Litigants cannot, simply by bringing suit, bootstrap an
otherwise constitutional display into an unconstitutional es-
tablishment of religion.
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
DECEMBER 2004
PAUL D. CLEMENT
Acting Solicitor General
PETER D. KEISLER
Assistant Attorney General
GREGORY G. KATSAS
Deputy Assistant Attorney
General
PATRICIA A. MILLE7TT
Assistant to the Solicitor
General
ROBERT M. LOEB
LOWELL V. STURGILL JR.
Attorneys
oe
APPENDIX
Alabama: A small plaque of the Ten Commandments hangs
inside the State Capitol. See National Briefs, Miami Herald
at 19 (Sept. 10, 2003), available at 2003 WL 62530915.
Alaska: The city council chambers in Fairbanks has a
depiction of the Ten Commandments. http://atheism.about.
com/b/a/074472.htm?terms=fairbanks.
Arizona: A monument of the Ten Commandments sits on
state park land in Wesley Bolin Plaza, just east of the Ari-
zona state capitol in Phoenix. See Arizonans to Rally for Ten
Commandments; Hundreds Expected to Gather, Pray to Call
for an End to Judicial Tyranny, U.S. Newswire (Sept. 22,
2003), available at 2003 WL 55662538.
Arkansas: The Ten Commandments are posted in a court-
room in Maumelle County. See Maumelle candidates fail to
leap out front, Arkansas Democrat Gazette at 17 (Nov. 3,
2004), available at 2004 WL 96720618.
California: There is a depiction of Moses holding the Ten
Commandments over the western entrance to the Los Angeles
Superior Court. See http//mayitpleasethecourt.net/journalasp?
blogid=33; http//www.heydaybooks.com/public/books/ccreview Lhtml.
Colorado: There is a Ten Commandments monument on
the lawn of the State Capitol in Denver. There is a similar
monument on the lawn in front of city hall in Grand Junction.
See http://www.casperstartribune.net/articles/2003/10/28/
news/casper/7a64 15c2e299679a2c564c0721 13f7e6.txt.
Delaware: A framed copy of the Ten Commandments hangs
on the wall in the council chamber in the Sussex County
administrative office building.
District of Columbia: Both the United States Court of
Appeals for the District of Columbia Circuit and the
(la)
2a
Supreme Court have Ten Commandments displays in their
courtrooms. The National Archives has a display of the Ten
Commandments on the floor of its entryway. See Affidavit
of David Barton, Doe v. Harlan Cty Sch. Dist., Civ. No. 99-
508 (E.D. Ky. 2001), available at http://wallbuilders.com/
resources/search/detail.php? ResourceID=41. Displays also
appear in the U.S. Capitol and the Ronald Reagan Interna-
tional Trade building.
Florida: In the lobby of the Polk County Administrative
Building is a 7-foot, 6-inch monument depicting the Ten —
Commandments and other documents. See http://www.
thomasmore.org/news.html? NewsID=121.
Georgia: The seal of the clerk of the Superior Court in
Richmond County contains an outline of the Ten Com-
mandments. See King v. Richmond County, 331 F.3d 1271
(11th Cir. 2003). The courthouses in Barrow County and
Hart County have framed copies of the Ten Commandments
outside their courtrooms. See Across Georgia, Augusta
Chron. at B03 (Nov. 8, 2004), available at 2004 WL 96282513.
Idaho: The City of Post Falls has a monument on the lawn in
front of its City Hall. There appear to be monuments
bearing the Ten Commandments on the lawn on the eastside
of the courthouse in Coeur d’Alene and in a park near the
City Hall in Hayden. See Erica Curless, Commandments
<oound in Idaho; Low-key monuments in public spaces seem
unlikely to inspire lawsuits, The Spokesman-Review, at Al
(Sept. 2, 2002), available at 2003 WL 57389325.
Illinois: There is a mural in the State Supreme Court library
that depicts stone tablets with Hebrew written on them.
Indiana: The Washington County courthouse has a display
of the Ten Commandments.
Iowa: There is a monument of the Ten Commandments in a
plaza by the city hall in Cedar Rapids.
/
3a
Kansas: There is a stone monolith in front of a municipal
building in Junction City. See http://www.kstatecollegian.
com/article. php?a=3321.
Kentucky: Displays at issue in this case.
Louisiana: A framed copy of the Ten Commandments hangs
on the wall of an East Baton Rouge Parish courtroom. The
Week In-Review, Baton Rouge Advoc. 4B (Aug. 31, 2003),
available at 2003 WL (225) 389-3950.
Maine: There is a mural depicting Moses carrying stone
tablets in the district court in Rumford, Maine.
Maryland: There is a monument on the courthouse lawn
in Cumberland, Maryland. See http://www.inthefaith.com/
archive/001451.php; http://www.showmenews.com/2004/Oct/
20041023F eat004.asp. There is also a monument in a park in
Frederick. http://www.demossnewspond.com/aclj/releases/
2004%20Releases/10 command011604.htm.
Massachusetts: There is a depiction in the central panel
of a frieze on the north wall in the Boston public library.
See http://www.sargentmurals.bpl.org/site/murals/24_
description. html last visited (Nov. 24, 2004).
Minnesota: There is a bronze plaque bearing the Ten
Commandments on the entrance to the Crow Wing County
courthouse in Brainerd. http://www.mfc.org/contents/
article.asp?id=1123.
Mississippi: There is a statue of Moses holding the Ten
Commandments atop the Hinds County Courthouse. See
http://home.millsaps.edu/~beckea/Buildings2.html.
Missouri: There is monument of the Ten Commandments on
the grounds of the State Capitol in Jefferson City. See
http://atheism.about.com/b/a/021266.htm.
4a
Montana: There is a granite monolith bearing the Ten
Commandments on the capitol grounds in Helena. See
http://www.helenair.com/articles/2004/09/22/montana/a01092
204_ 04.txt.
Nebraska: There is a depiction of the Ten Command-
ments on a light fixture in the chamber of the State Supreme
Court. See http://court.nol.org/tour/tour.htm. On
the outside of the state capitol in Lincoln is a relief showing
Moses carrying the Ten Commandments. See http://
www.wilhelm-aerospace.org/Architecture/modern/art-deco/
nebraska-capitol/ten-commandments.JPG. Fremont has a
monument of the Ten Commandments in a public park.
www.journalstar.com/articles/ 2004/02/19/local/10045545.txt.
Nevada: There is a stone sculpture bearing the Ten
Commandments in the Lovelock Courthouse. There is also a
displayed at a senior center owned by the City of Las Vegas.
New Jersey: There is a Ten Commandments monument in a
public park in Trenton.
New Mexico: A monument of the Ten Commandments sits
on the lawn in front of the Curry County courthouse in
Clovis, New Mexico. See Curry Courthouse Displays Com-
mandments Monument, http://amarillo.com/stories/082903/
usn_currycourthouse.shtml; Sanford Brickner, Know Your
Rights: Court Case Spotlights Religious Liberty, Santa Fe
New Mexican C3 (Sept. 5, 2003), available at 2003 WL
57263786.
New York: A state courthouse in Brooklyn has a carved
medallion on the facade depicting Moses carrying the com-
mandments. http://www.courts.state.ny.us/history/elecbook/
2ddept/pg13.htm.
North Carolina: The back wall of the main courtroom in the
Haywood county courthouse has a sculpture of the Ten
5a
Commandments. Suhre v. Haywood County, 55 F. Supp. 2d
384 (W.D.N.C. 1999).
North Dakota: There isa monument bearing the Ten Command-
ments in a public plaza in Fargo. See http//news.minnesota.
publicradio.org/features/2004/10/12_ap_tencommandments. A
monument of the Ten Commandments sits outside the Mor-
ton County Courthouse in Manden, North Dakota. http://
www.kqced.com/showNews.asp? whatStory=2137.
Ohio: There is a monument of the Ten Commandments out-
side the Lucas County courthouse in Toledo. See http://
www.aclu.org/ReligiousLiberty/ReligiousLiberty.cfm?ID=
16102&c=38.
Oklahoma: There is a monument of the Ten Commandments
on the lawn of the Haskell County courthouse. See http://
www.amarillo.com/stories/111004/usnten.shtml.
Pennsylvania: The Ten Commandments appears in a mural
in the Pennsylvania Supreme Court courtroom in Harris-
burg. See Jonathan Gelb, Commandment Fight Expands
to Chester County’s Web Site, Phila. Inquirer, at B7
(Feb. 26, 2003); see also http://www.slate.com/id/2075609/
slideshow/2075609/fs/0//entry/2075617/._ Both the Allegheny
County courthouse and the Chester County courthouse have
plaques of the Ten Commandments on their facades. See Mo-
drovich v. Allegheny County, 385 F.3d 397, 399 (3d Cir.
2004); Freethought Soc’y of Greater Philadelphia v. Chester
County, 334 F.3d 247 (3d Cir. 2003); see also http://www.
post-gazette.com/localnews/ 20030627 plaquereg4p4.asp.
Tennessee: A plaque bearing the Ten Commandments
hangs on the outside of the Washington County courthouse.
See Melanie B. Smith, A busy time for the Big 10: Ten Com-
mandments courthouse controversy not solely in Alabama,
The Decatur Daily (Aug. 30, 2003). There is also a plaque
containing the Ten Commandments in the foyer of the
6a
Sullivan County courthouse, ibid., and there is a framed copy
of the Ten Commadments in the foyer of the Monroe County
Courthouse, ibid. We have been advised that courthouses in
approximately 45 of the 95 counties in Tennessee have
similar displays.
Texas: There is a monument of the Ten Commandments on
the state capitol grounds. See Van Orden v. Perry, 351 F.3d
173 (5th Cir. 2003).
Utah: There is a monument of the Ten Commandments in a
public park in Pleasant Grove. See http://www.thomasmore.
org/news.html? NewsID=214.
Washington: A monument of the Ten Commandments sits
on the lawn in front of the police department in Everett,
Washington. See BC-Washington Digest, Can. Press (July
24, 2003), available at 2003 WL 60142300; see also Ten
Commandments: North News, Seattle Post-Intelligencer, at
Bl(June 2, 2001), available at 2001 WL 3560440.
West Virginia: A plaque of the Ten Commandments hangs
on a wall in one of the courtrooms in the Clay County
courthouse. See http://www.afa.net/clp/ReleaseDetail.asp?
id=75.
Wisconsin: The City of La Crosse has a monument of the
Ten Commandments in Cameron park. See http://www.
lacrossetribune.com/articles/2003/07/15/news/00lead.txt.
Wyoming: Cheyenne has a monument of the Ten Com-
mandments in a public park. See www.billingsgazette.com/
index.php?id=1 &display=rednews/2003/1 1/25/build/wyoming/
42-cheyennetencommandments.inc.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.