Amicus Curiae Brief — McCreary County v. American Civil Liberties Union of Ky.

\ Supreme Count, U.S.

FILED

DEC 8 - 2004

OFFICE OF THE CLERK

Supreme Court of the United States

*

MCCREARY COUNTY, KENTUCKY, ET AL.,

Petitioners,

v.

AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, ET AL.,

Respondents.

7

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

.

BRIEF FOR THE STATES OF ALABAMA,

FLORIDA, IDAHO, INDIANA, KANSAS,

KENTUCKY, LOUISIANA, MISSISSIPPI, OHIO,

PENNSYLVANIA, SOUTH CAROLINA, TEXAS,

UTAH, VIRGINIA, AND WYOMING, AS AMICI

CURIAE, IN SUPPORT OF PETITIONERS

+

—_ TROY KING

Attorney General of Alabama

KEVIN C. NEWSOM

Solicitor General

CHARLES B. CAMPBELL*

Assistant Attorney General

Counsel of Record

STATE OF ALABAMA

11 South Union Street

Montgomery, Alabama 36130-0152

(334) 242-7300, (334) 353-3198"

Counsel for the State o: Alabama,

- Amicus Curiae

December 8, 2004 (Additional Counsel Listed Overleaf)

ee

Additional Counsel for Amici Curiae

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

STATE OF FLORIDA

The Capitol, PL 01

Tallahassee, FL 32399-1050

LAWRENCE G. WASDEN

ATTORNEY GENERAL

STATE OF IDAHO

P.O. Box 83720

Boise, ID 83720-0010

STEVE CARTER

ATTORNEY GENERAL

STATE OF INDIANA

Indiana Government Center

South - 5th Floor

302 West Washington St.

Indianapolis, IN 46204

PHILJ. KLINE

ATTORNEY GENERAL

STATE OF KANSAS

120 S.W. 10th Ave., 2nd FI.

Topeka, KS 66612-1597

Grecory D. STUMBO

ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

State Capitol, Suite 118

Frankfort, KY 40601

CHARLES C. Forti, JR.

ATTORNEY GENERAL

STATE OF LOUISIANA

P.O.Box 94095

Baton Rouge, LA 70804-9095

JIM Hoop

ATTORNEY GENERAL

STATE OF MISSISSIPPI

P.O. Box 220

Jackson MS 39205

JIM PETRO

ATTORNEY GENERAL

STATE OF OHIO

State Office Tower

30 E. Broad St.

Columbus, OH 43215-3428

GERALD J. PAPPERT

ATTORNEY GENERAL

COMMONWEALTH OF PENNSYLVANIA

1600 Strawberry Square

Harrisburg, PA 17120

HENRY MCMASTER

ATTORNEY GENERAL

STATE OF SOUTH

CAROLINA

P.O.Box 11549

Columbia, SC 29211

GREG ABBOTT

ATTORNEY GENERAL

STATE OF TEXAS

Capitol Station

P.O.Box 12548

Austin, TX 78711-2548

MARK L. SHURTLEFF

ATTORNEY GENERAL

STATE OF UTAH

236 State Capitol

Salt Lake City, Utah 84114

JERRY W. KILGORE

ATTORNEY GENERAL

COMMONWEALTH OF VIRGINIA

900 East Main Street

Richmond, VA 23219

PATRICK J. CRANK

ATTORNEY GENERAL

STATE OF WYOMING

123 State Capitol Bldg.

Cheyenne, WY 82002

i

QUESTIONS PRESENTED

1. Whether the Establishment Clause is violated by a

privately donated display on government property that

includes eleven equal size frames containing an explana-

tion of the display along with nine historical documents

and symbols that played a role in the development of

American law and government where only one of the

framed documents is the Ten Commandments and the

remaining documents and symbols are secular.

2. Whether a prior display by the government in a

courthouse containing the Ten Commandments that was

enjoined by a court permanently taints and thereby

precludes any future display by the same government

when the subsequent display articulates a secular pur-

pose and where the Ten Commandments is a minority

among numerous other secular historical documents and

symbols.

3. Whether the Lemon test should be overruled since

the test is unworkable and has fostered excessive confu-

sion in Establishment Clause jurisprudence.

4. Whether a new test for Establishment Clause pur-

poses should be set forth by this Court when the govern-

ment displays or recognizes historical expressions of

religion.

i

TABLE OF CONTENTS

Page

eT UII ic daiitedsitiiensnsenbneidneuniendiilicintel i

ee I Se Ee ccnntcecnincniacisininanisneniinmnincesieeses iv

BRIEF FOR AMICI CURIAE IN SUPPORT OF

IIIT hina darlene icetmasciceinhiasinniamnbaiienniiemanieies 1

INTEREST OF AMICI CURIAE ............sssssssserssssssesseseeeees 1

SUMMARY OF ARGUMENT. ...........0..0.00...ccccccccssscssesssseeses 2

TE ssceeihiieediiebialauciaiiabinieleeceniasiiaps ibdabaiailgaiainabeiaiienata 4

I. THE TEN COMMANDMENTS HAVE

LONG BEEN DISPLAYED ON PUBLIC

PROPERTY THROUGHOUT THE

III cineca sclaeicitaupelehidein etal nd cet ceed aia deatneecesi 4

II. THE COURT SHOULD ABANDON THE

“LEMON TEST,” AND, AT LEAST FOR

DISPLAY CASES, APPLY THE

EET HII dcnustlacutesieninticneaindicasensedinsdininnionl 8

A. The Lemon Test Has Engendered

Confusion in the Lower Courts and

Hostility Toward Religion. ...................:.:s00eeeee 9

B. The “Coercion Test” Better Represents

the Framers’ Intent and Our Nation’s

I iitciicccciisietinnndaiabiiaiiniiiainenuven 13

III.THE DISPLAYS IN THIS CASE DO NOT

VIOLATE THE ESTABLISHMENT

icine Daiiicciacis vercttitaitaniiediressitepicinsielaiiansiapiiaatiansen 18

A. Petitioners’ Displays Satisfy the

I ee ieinncicianetaniciisensesseneteniitiamsdiaaliniaiianiiaitiess 19

(

ill

B. Petitioners’ Displays Satisfy the

I 20

C. Petitioners’ Displays Satisfy the Lemon

1 ORF AN NM NIA ROS ER ESN CAREY Me EN 20

| Re ES NR Re OBIE Pe a 25

J

lV

TABLE OF AUTHORITIES

Page(s)

Cases

American Civil Liberties Union of Kentucky v.

McCreary County, 145 F. Supp. 2d 845 (E.D.

Ky. 2001), affd, 354 F.3d 438 (6th Cir. 2003) ........... 23

American Civil Liberties Union of Kentucky v.

McCreary County, 354 F.3d 488 (6th Cir.

Ti hisrcovsuniisndiniapudiniommicesabietietanaesneeaedians 9, 22, 23, 24

American Civil Liberties Union of Kentucky v.

McCreary County, 361 F.3d 928 (6th Cir.

TT ssctisssssecnsdecnsiapidiinatasendnsiitheninnmaapendiaasinadaideneid 22, 23, 24

American Civil Liberties Union of Ohio

Foundation, Inc. v. Ashbrook, 375 F.3d 484 (6th

SSIs SITs sisipiene hedeenachags cele dabinaihanaitethdaeataidaahiehdainatbnlbtaisa 5

Board of Education of Kiryas Joel Village Sch.

Dist. v. Grumet, 512 U.S. 687 (1994) ..........ccceceeeeeeseees 18

Board of Education of Westside Community

Schools v. Mergens, 496 U.S. 226 (1990) ................. 12

City of Elkhart v. Books, 532 U.S. 1058 (2001).......... 21, 22

Committee for Public Education & Religious

Liberty v. Regan, 444 U.S. 646 (1980) ............. eee 10

Corporation of Presiding Bishop of Church of Jesus

Christ of Latter-Day Saints v. Amos, 483 U.S.

Srna IIIT ia seccuchlehnstehtosicseadineiiniieaibateesidnadaclonhdpaiidimmidiintamnininel 10

County of Allegheny v. American Civil Liberties

Union, Greater Pittsburgh Chapter, 492 U.S.

i scnntoccesiexeneniniientniaincsniniiianiainintanenmimines passim

Edwards v. Aguillard, 482 U.S. 578 (1987) ...........::.00 21

Vv

Elk Grove Unified School District v. Newdow, 124

Be a ee SED assnssinchnssenniediessiotinnrtcaniiantenieedninniemnaias 4, 20

Engel v. Vitale, 370 U.S. 421 (1962) .................ccceceeeceeeeeeees 4

Everson v. Board of Education of Ewing, 330 U.S.

Pirie insisinnetianiiinsennsnignitintbsensetitiditegiiataabindetiiabatieiniganmeietél 4

Freethought Society of Greater Philadelphia v.

Chester County, 334 F.3d 247 (3d Cir. 2003)................ 5

Glassroth v. Moore, 335 F.3d 1282 (11th Cir.), cert.

Geniod, 124 &. Ct. 407 (BOOF).......csescssosecesccesececsccsseocooees 9

Hunt v. McNair, 413 U.S. 734 (19738) .............ccccceceeeeeseeees 11

King v. Richmond County, 331 F.3d 1271 (11th

Sark; MUTT csisiicniienbhcnabrsniecietbciceitidihnininiaieiesaanastnenlitansidniienn 5

Lamb’s Chapel v. Center Moriches Union Free

School District, 508 U.S. 384 (1993)................. 9, 10, 12

Larson v. Valente, 456 U.S. 228 (1982) .................0008 11, 12

Lee v. Weisman, 505 U.S. 577 (1992)............ccceeeeeeees passim

Lemon v. Kurtzman, 403 U.S. 602 (19711) ................ passim

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

Marsh v. Chambers, 463 U.S. 783 (1983).................00 4,12

McGowan v. Maryland, 366 U.S. 420 (1961) ............... 4,15

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

Re cicsiesieniniesinnciteniteilasedeihdidiaaliiailacdsiiailblalnad dad beastie 5

New York Trust Co. v. Eisner, 256 U.S. 345 (1921)........... 4

Santa Fe Independent School District v. Doe, 530

Be iteccisevihiecitaenitiiniontiiaiannteniininitaneeiel passim

State v. Freedom from Religion Foundation, Inc.,

898 P.2d 1013 (Colo. 1995), cert. denied, 516

ee ee i nicincneccniscsinsceninnpinnaniiinnimeninnintasamannisasel 5

vi

Stone v. Graham, 449 U.S. 39 (1980) ............. 21, 22, 23, 24

Suhre v. Haywood County, 55 F. Supp. 2d 384

UOTE: SENPTIDUIIID csciiephntictaesibihietaahendehdebtanedoneaaeetasietaiiaetasiasiiagte 6

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

cert. granted, 125 S. Ct. 346 (2004) (No. 03-

Pill icinssscctintaessidesdpstieasanasdieaibidaidieiaabausicninadiiiildidtennnitests 5

Wallace v. Jaffree, 472 U.S. 38 (1985)................... 10, 11, 12

Walz v. Tax Commission, 397 U.S. 664 (1970)............... 8,9

Rules

UN, Ga. Bik Se ancnscnncenacntinaiaiisainiantsibinaaiiaiatietaeidiniaemianadeati 1

Other Authorities

1 Annals of Cong. 730-31 (1789) ...............sssssceccccccessseeeees 15

Act for Establishing Religious Freedom (1786), in 5

The Founders’ Constitution 84 (Philip B.

Kurland & Ralph Lerner eds. 1987) ...................::cceee 17

Ala. Jud. Sys., Alabama Judicial Building Tour,

Foundations of Our Law-—Rotunda Display,

http://www.judicial.state.al.us/tour_display.cfm

I I Wr salts l

Sarah Evans Barker, The Rule of Law, 15 Traces 3

EERE ERR es Ne ON EET SO 6

Jess Bravin, When Moses’ Laws Run Afoul of the

U.S.’s, Get Me Cecil B. deMille, Wall St. J., Apr.

Ii, BRI cnseceensasessescncencnsnstesneniivenanenmansenetusntiinintennnsencmnnia 5

Carrie Devorah, God in the Temples of

Government, Human Events, Nov. 24, 2003................ 6

Carrie Devorah, God in the Temples of

Government: Part IJ, Human Events, Dec. 22,

vil

Thomas Jefferson, A Bill for Establishing Religious

Freedom (1779) in 5 The Founders’ Constitu-

SEIT W ivicititleciincanshsinrihisteciniaiuaiininiidacineiianadiecindiiaccslianamiembeiid 11,17

Thomas Jefferson, Letter to James Madison (June

9, 1798) in 30 The Papers of Thomas Jefferson

393 (Barbara B. Oberg ed., 2003) ..............ceceeeeeeeeeeeees 17

Thomas Jefferson, Letter to Rev. Samuel Miller

(Jan. 23, 1808) in 5 The Founders’ Constitution

Thomas Jefferson, Notes on Locke (1776), in 1 The

Papers of Thomas Jefferson 544 (Julian P. Boyd

Tc insistence liiat ala ini dedihailciae 16

John Locke, A Letter Concerning Toleration (1689) ........ 16

James Madison, Memorial and Remonstrance

Against Religious Assessments (1785) in 5 The

I a eennibinnns 15

George Mason, First Draft of the Virginia

Declaration of Rights (1776), in 1 The Papers of

George Mason 276 (Robert A. Rutland ed.,

Michael W. McConnell, Coercion: The Lost

Element of Establishment, 27 Wm. & Mary L.

I, slid 9

Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part I:

Establishment of Religion, 44 Wm. & Mary L.

Gs IID citucniendesetdatatisdiaibiatdiniiiaitenmenteinniincnenenns ll

Michael W. McConnell, Stuck with a Lemon: A

_New Test for Establishment Clause Cases

Would Help Ease Current Confusion, 83 A.B.A.

Bs a caiiicietiteritaibinipid bateiicinsiaiiicensaicecacanandaenbiutspiaiinmiitie 10

vill

John T. Noonan, Jr., The Believer and the Powers

FEES a ao ee eR eT

Office of the Curator, Supreme Court of the U.S.,

Courtroom Friezes: North and South Walls

Information Sheet 1, http://www.supreme

courtus.gov/about/north&southwalls.pdf

Te SR, Tih, CD wecnectsncncesnsicniscosenveiionbiniasens

Office of the Curator, Supreme Court of the U.S.,

Exterior Portrait Medallions and the Great

Hall Metopes Information Sheet 2, http://

www.supremecourtus.gov/about/medallions

&metopes.pdf (updated Sept. 17, 2003)................

Office of the Curator, Supreme Court of the U.S.,

Symbols of Law Information Sheet 2, http://

www.supremecourtus.gov/about/symbolsoflaw.

pdf (updated May 23, 2002) ....................cccseeeeeeeees

Office of the Curator, Supreme Court of the U.S.,

The East Pediment Information Sheet 1,

http://www.supremecourtus.gov/about/eastpedi

ment.pdf (updated Aug. 18, 2000) ....................0..

Pa. Unified Jud. Sys., Supreme Court Photo

Gallery, http://www.courts.state.pa.us/index/

Supreme/photogallery9.asp (last visited Dec. 7,

Va. Decl. of Rights § 16 (1776), in 5 The Founders’

IIIT Si csishiissieieisincinhtenetanidainenstcimindasiaiadtaamebdiiands

1

BRIEF FOR AMICI CURIAE

IN SUPPORT OF PETITIONERS

Pursuant to Sup. Ct. R. 37.4, the amici States respect-

fully submit this brief in support of Petitioners and urge

reversal of the Sixth Circuit’s judgment.

INTEREST OF AMICI CURIAE

Like Petitioners in this case, the State of Alabama has

“Foundations of Our Law” displays in its Capitol and its

Judicial Building. Alongside the Ten Commandments,

Alabama’s displays include: (i) the Code of Justinian; (1i)

the Magna Carta; (iii) the Mayflower Compact; (iv) the

Declaration of Independence; (v) the United States

Constitution; (vi) the Bill of Rights; (vii) the Thirteenth,

Fourteenth, Fifteenth, and Nineteenth Amendments to

the Constitution; and (viii) brief commentary. See, e.g.,

Ala. Jud. Sys., Alabama Judicial Building Tour, Founda-

tions of Our Law-—Rotunda Display, at http://www.judi

cial.state.al.us/tour_display.cfm (last visited Dec. 1,

2004) (including photographs and HTML version of Judi-

cial Building display).

The other amici States (or local governments within

them) likewise display the Ten Commandments in a

variety of ways—as do various entities within the Federal

Government, including this Court. Given the long history

and prevalence of Ten Commandments displays on public

property, the amici States have a keen interest in seeing

such displays upheld as constitutional.

2

SUMMARY OF ARGUMENT

Depictions of the Ten Commandments are a common

feature of public life in the United States. Such dis-

plays—whether exhibited as symbols, monuments,

plaques, or documents—date back at least to the 1870s,

and there are today (literally) thousands of them across

the country. The displays are particularly common at

seats of government, and are perhaps most often found in

and around courthouses. Indeed, this Court’s own build-

ing contains more than a dozen depictions of the

Commandments. The history and ubiquity of displays on

public property involving religious themes in general, and

the Ten Commandments in particular, merely confirm

this Court’s observation that “[t]here is an unbroken

history”—here, going back some 130 years—“of official

acknowledgment by all three branches of government of

the role of religion in American life ....” Lynch v. Don-

nelly, 465 U.S. 668, 674 (1984).

Although the displays challenged in this case satisfy

both the “Lemon test,” see Lemon v. Kurtzman, 403 U.S.

602, 612-13 (1971), and the “endorsement test,” see

County of Allegheny v. American Civil Liberties Union,

Greater Pittsburgh Chap., 492 U.S. 573, 592-94 (1989),

the amici States respectfully submit that this case should

be analyzed under the “coercion test” articulated by

Justice Kennedy in Allegheny, id. at 659 (Kennedy, J.,

concurring in judgment in part and dissenting in part).

Under the coercion test, “government may not coerce

anyone to support or participate in religion or its exercise,

or otherwise act in a way which ‘establishes a [state]

religion or religious faith, or tends to do so.” Lee v.

Weisman, 505 U.S. 577, 587 (1992) (quoting Lynch, 465

U.S. at 678); see also Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290, 302 (2000).

3

The Lemon test has spawned confusion in the lower

courts—and worse, has engendered hostility toward

religion. The coercion test better represents the Framers’

understanding of religious establishments and our Na-

tion’s historic practices by properly focusing on govern-

ment compulsion in religious matters.

When judged (i) against the history and ubiquity of

public displays featuring religious symbols generally and

displays of the Ten Commandments in particular, and (ii)

in the light of the utter absence of governmental coercion,

it is apparent that Petitioners’ historic-documents dis-

plays do not violate the Establishment Clause. Rather,

the displays represent a constitutional acknowledgment of

religion’s indisputably important role in American life

and history. Indeed, at the end of the day, the result here

is the same whether the case is analyzed under the

coercion test, the endorsement test, or even under Lemon

itself.

4

ARGUMENT

I. THE TEN COMMANDMENTS HAVE LONG

BEEN DISPLAYED ON PUBLIC PROPERTY

THROUGHOUT THE NATION.

As Justice Holmes famously observed, frequently “a

page of history is worth a volume of logic.” N.Y. Trust Co.

v. Eisner, 256 U.S. 345, 349 (1921). So it is that many of

this Court’s Establishment Clause cases have involved a

detailed examination of history. See, e.g., Engel v. Vitale,

370 U.S. 421, 425-36 (1962); McGowan v. Maryland, 366

U.S. 420, 431-43 (1961); Everson v. Bd. of Educ. of Ewing,

330 U.S. 1, 8-16 (1947). Likewise, here, the long history

of depictions of religious symbols, including the Ten

Commandments, on public property bears directly on the

questions presented in this case. See, e.g., Elk Grove

Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301, 2323-24

(2004) (O’Connor, J., concurring in the judgment) (em-

phasizing “history and ubiquity” of challenged practice);

Marsh v. Chambers, 463 U.S. 783, 786-92 (1983) (empha-

sizing historical pedigree of legislative prayer).!

The Ten Commandments have aptly been called “the

most influential law code in history.” John T. Noonan,

Jr., The Believer and the Powers that Are 4 (1987). It is

not surprising, then, that depictions of the Ten Com-

mandments are a common feature of public (not to men-

tion private) life in the United States. Public displays of

the Ten Commandments—whether exhibited as symbols,

monuments, plaques, or documents—date back at least to

the 1870s. See, e.g., King v. Richmond County, 331 F.3d

1 Inasmuch as Indiana’s brief for the amici States in Van Orden v.

Perry, No. 03-1500, addresses public displays and monuments featur-

ing religious symbolism generally, this brief will focus on public

monuments and displays featuring the Ten Commandments in

particular.

= ————

5

1271, 1273-74 (11th Cir. 2003) (superior court seal

depicting Ten Commandments and sword used at least

since 1872); Modrovich v. Allegheny County, 385 F.3d 397,

399 (3d Cir. 2004) (bronze plaque containing Ten Com-

mandments donated to county in 1918); Freethought Soc’y

of Greater Philadelphia v. Chester County, 334 F.3d 247,

249 (3d Cir. 2003) (bronze plaque donated to county in

1920). Such displays, and particularly monuments, are,

to put the matter plainly, all over the place—thanks in

part to the fact that “as many as 4,000 Ten Command-

ments monoliths were erected in public spaces across the

country” during the 1950s and 1960s by the Fraternal

Order of Eagles. Jess Bravin, When Moses’ Laws Run

Afoul of the U.S.’s, Get Me Cecil B. deMille, Wall St. J.,

Apr. 18, 2001, at Al (describing campaign to donate Ten

Commandments monuments in connection with deMille’s

1956 movie, The Ten Commandments).

Ten Commandments displays are particularly com-

mon at seats of government and courthouses around the

country. For example, Ten Commandments monuments

(donated by the Fraternal Order of Eagles) stand in the

state capitol complexes in Colorado and Texas. See Van

Orden v. Perry, 351 F.3d 173, 175-76 (5th Cir. 2003), cert.

granted, 125 S. Ct. 346 (2004) (No. 03-1500); State v.

Freedom from Religion Found., Inc., 898 P.2d 1013, 1015—

16 (Colo. 1995), cert. denied, 516 U.S 1111 (1996). Like-

wise, a mural in the chamber of the Supreme Court of

Pennsylvania depicts Moses carving a tablet, with the

Ten Commandments listed below. See Pa. Unified Jud.

Sys., Supreme Court Photo Gallery, http://www.courts.

state.pa.us/index/Supreme/photogallery9.asp (last visited

Dec. 7, 2004). Similarly, the old federal “district court-

house in Cleveland ... is adorned with a large, magnifi-

cent mural of the Ten Commandments flanked by angels.”

American Civil Liberties Union of Ohio Found., Inc. v.

Ashbrook, 375 F.3d 484, 506 (6th Cir. 2004) (Batchelder,

6

J., dissenting). And the ceremonial courtroom in the

Birch Bayh Federal Courthouse in Indianapolis also

contains a mural depicting (among other things) Moses

holding the Ten Commandments. See Sarah Evans

Barker, The Rule of Law, 15 Traces 3 (Summer 2003)

(including photograph showing the Ten Commandments);

see also Suhre v. Haywood County, 55 F. Supp. 2d 384,

385-86 (W.D.N.C. 1999) (describing marble plaques of the

Ten Commandments on either side of sculpture of Lady

Justice in county courthouse in western North Carolina).

So, too, in Washington, D.C., depictions of the Ten

Commandments seem to be around every corner. A

statue of Moses holding the Ten Commandments adorns

the rotunda of the Library of Congress. There is a statue

representing “Liberty of Worship” resting on the Ten

Commandments outside the Ronald Reagan Building and

International Trade Center. Outside the E. Barrett

Prettyman Federal Courthouse there is a depiction of the

Decalogue on tablets with Hebrew writing. And, of

course, the Supreme Court building itself contains several

Commandments displays. See Carrie Devorah, God in the

Temples of Government, Human Events, Nov. 24, 2003, at

20; Carrie Devorah, God in the Temples of Government:

Part II, Human Events, Dec. 22, 2003, at 14.

In this Court’s building, depictions of the Ten Com-

mandments abound. Moses is portrayed in the frieze on

the south wall of the Courtroom “holding two overlapping

tablets, written in Hebrew” on which “Commandments six

through ten are partially visible.” Office of the Curator,

Supreme Court of the U.S., Courtroom Friezes: North and

South Walls Information Sheet 1, http://www.supreme

courtus.gov/about/north&southwalls.pdf (updated Aug.

18, ~000). Moses is egain represented holding two tablets

in the East Pediment. See Office of the Curator, Supreme

Court of the U.S., The East Pediment Information Sheet 1,

http://www.supremecourtus.gov/about/eastpediment.pdf

7

(updated Aug. 18, 2000). The tablets are depicted beside

a profile of Moses in eight metopes in the Great Hall. See

Office of the Curator, Supreme Court of the U.S., Exterior

Portrait Medallions and the Great Hall Metopes Informa-

tion Sheet 2, http://www.supremecourtus.gov/about/medal

lions&metopes.pdf (updated Sept. 17, 2003). And finally,

images of the Ten Commandments as two rectangular

tablets with curved tops and Roman numerals I-—X “ap-

pear on the support frame of the Courtroom’s bronze

gates ...; on the lower, interior panels of the Courtroom

doors; and held by the figure representing ‘Law’ in the

Library woodwork.” Office of the Curator, Supreme Court

of the U.S., Symbols of Law Information Sheet 2,

http://www.supremecourtus.gov/about/symbolsoflaw.pdf

(updated May 23, 2002)

It goes without saying, of course, that these displays

are not efforts to proselytize or indoctrinate. Rather,

according to this Court’s Curator, they serve an important

secular purpose:

Throughout the history of western art, tablets

have been used to signify “the Law.” This tradi-

tion is closely associated with Moses, the Hebrew

lawgiver, who according to the Book of Exodus de-

scended from Mount Sinai with two stone tablets

inscribed with the Ten Commandments. Over

time, the use of two tablets has become a symbol

for the Commandments, and more generally, an-

cient laws. Tablets signify the permanence of the

law when “written in stone.”

Id.

The longstanding tradition and current ubiquity of

displays on public property involving religious themes in

general, and the Ten Commandments in particular,

further confirm this Court’s observation that “[t]here is an

unbroken history”—here, dating back some 130 years—“of

8

official acknowledgment by all three branches of govern-

ment of the role of religion in American life ....” Lynch

v. Donnelly, 465 U.S. 668, 674 (1984). “This history may

help explain why the Court consistently has declined to

take a rigid, absolutist view of the Establishment Clause”

and “ha[s] refused ‘to construe the Religion Clauses with

a literalness that would undermine the ultimate constitu-

tional objective as illuminated by history.’ ” Id. at 678

(quoting Walz v. Tax Comm'n, 397 U.S. 664, 671 (1970))

(emphasis in Lynch). In short, “the meaning of the

[Establishment] Clause is to be determined by reference

to historical practices and understandings.” County of

Allegheny v. American Civil Liberties Union, Greater

Pittsburgh Chap., 492 U.S. 573, 670 (1989) (Kennedy, J.,

concurring in judgment in part and dissenting in part).

As Justice Kennedy observed in Allegheny, a workable

and defensible Establishment Clause test “must permit

not only legitimate practices two centuries old but also

any other practices with no greater potential for an

establishment of religion.” Jd. “A test ... that, if applied

with consistency, would invalidate longstanding tradi-

tions cannot be a proper reading of the [Establishment]

Clause.” Jd. Whatever standard the Court chooses to

apply in this case, the longstanding tradition of public

displays of the Ten Commandments should be upheld as a

permissible “acknowledgment ... of the role of religion in

American life.” Lynch, 465 U.S. at 674.

Il. THE COURT SHOULD ABANDON THE “LEMON

TEST,” AND, AT LEAST FOR DISPLAY CASES,

APPLY THE “COERCION TEST.”

Both the district court and the court of appeals ana-

lyzed this case under the three-part test of Lemon v.

Kurtzman, 403 U.S. 602 (1971). Under the “Lemon test,”

a statute or government activity must: (i) “have a secular

... purpose”; (ii) have a “principal or primary effect ...

9

that neither advances nor inhibits religion”; and (iii) “not

foster ‘an excessive government entanglement with

religion.’” Jd. at 612-13 (citation omitted) (quoting Walz,

397 U.S. at 674). The court of appeals treated the “en-

dorsemeni test,” see Allegheny, 492 U.S. at 592-94, as a

refinement of the second, “effects prong” of Lemon. Am.

Civil Liberties Union of Ky. v. McCreary County, 354 F.3d

438, 446 (6th Cir. 2003).

Although the displays challenged in this case satisfy

both the Lemon test and the endorsement test, see infra

at 20-24, the amici States respectfully submit that this

case should be analyzed under the “coercion test” articu-

lated by Justice Kennedy in Allegheny, 492 U.S. at 659

(Kennedy, J., concurring in judgment in part and dissent-

ing in part). See also Lee v. Weisman, 505 U.S. 577, 587

(1992); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290,

302 (2000). As its name implies, the coercion test focuses

on government coercion or compulsion in matters of

religion, which one leading scholar (and now judge) has

called “the lost element of establishment” as the Founders

understood that legal concept. Michael W. McConnell,

Coercion: The Lost Element of Establishment, 27 Wm. &

Mary L. Rev. 933 (1986).

A. The Lemon Test Has Engendered Confusion

in the Lower Courts and Hostility Toward

Religion.

In deciding Establishment Clause cases, it has become

an “almost obligatory observation that the Lemon test is

often maligned.” Glassroth v. Moore, 335 F.3d 1282, 1295

(11th Cir.), cert. denied, 124 S. Ct. 497 (2003). A majority

of the Members of this Court have led or joined in criti-

cism or disapproval of the Lemon test at one time or

another. See Lamb’s Chapel v. Center Moriches Union

Free Sch. Dist., 508 U.S. 384, 398-400 (1993) (Scalia, J.,

joined by Thomas, J., concurring in judgment); Allegheny,

10

492 U.S. at 655-57 (Kennedy, J., joined by Rehnquist,

C.J., White and Scalia, JJ., concurring in judgment in

part and dissenting in part); Corporation of Presiding

Bishop of Church of Jesus Christ of Latter-Day Saints v.

Amos, 483 U.S. 327, 346-49 (1987) (O’Connor, J., concur-

ring in judgment); Wallace v. Jaffree, 472 U.S. 38, 107-13

(1985) (Rehnquist, J., dissenting). The test itself has been

likened to a “ghoul,” Lamb’s Chapel, 508 U.S. at 398

(Scalia, J., concurring in judgment), whose “career in the

decisional law of this Court” has been “checkered,” Santa

Fe Indep. Sch. Dist., 530 U.S. at 319 (Rehnquist, C.J.,

dissenting), and whose application is a “sisyphean task.”

Committee for Public Educ. & Religious Liberty v. Regan,

444 U.S. 646, 671 (1980) (Stevens, J., dissenting).

Unfortunately, the Lemon test “has simply not pro-

vided adequate standards for deciding Establishment

Clause cases.” Jaffree, 472 U.S. at 110 (Rehnquist, J.,

dissenting). As Judge McConnell has observed—

Each part of the Lemon test is deeply ambigu-

ous, and each—if taken literally—would produce

highly unattractive results. Consequently, the

lower federal courts and state courts have given

the test widely different and seemingly contradic-

tory interpretations, and they often ignore it alto-

gether to avoid undesirable results.

Michael W. McConnell, Stuck with a Lemon: A New Test

for Establishment Clause Cases Would Help Ease Current

Confusion, 83 A.B.A. J. 46, 46 (1997). “The result of [the

Lemon test’s] three ambiguous principles is a jurispru-

dence of confusion and inconsistency—with a heavy dose

of hostility to religion thrown in.” Id. at 47.

Particularly problematic is the Lemon test’s “secular

purpose” prong—which lies at the heart of this case.

Indiana’s brief for the amici States in Van Orden v. Perry,

11

No. 03-1500, addresses the difficulties with the purpose

prong at some length; thus, amici do so only briefly here.

As then-Justice Rehnquist observed in Wallace v.

Jaffree, the purpose prong “has proven mercurial in

application because it has never been fully defined, and

[the Court] never fully stated how the test is to operate.”

472 U.S. at 108 (Rehnquist, J., dissenting). Legal schol-

ars have agreed that “[iJt is not entirely clear what

‘secular legislative purpose’ means.” Michael W. McCon-

nell, Establishment and Disestablishment at the Found-

ing, Part I: Establishment of Religion, 44 Wm. & Mary L.

Rev. 2105, 2206 n.613 (2003). Equally troublesome, the

purpose prong is unfaithful to our history, because the

proponents of disestablishment frequently gave “religious

or theological justifications for their position,”? leading

Judge McConnell to ask whether disestablishment itself

“{[sJhould ... be faulted for reliance on a ‘nonsecular

purpose[.]’” Jd. at 2206.

Given the difficulties inherent in the Lemon test, this

Court has understandably declined to follow it consis-

tently. In Hunt v. McNair, 413 U.S. 734, 741 (1973), the

Court called the Lemon criteria “no more than helpful

signposts.” In Larson v. Valente, 456 U.S. 228 (1982), and

2 Judge McConnell cites Thomas Jefferson's Bill for Establishing

Religious Freedom. McConnell, Establishment and Disestablishment,

44 Wm. & Mary L. Rev. at 2206 & n.615. Among the first justifications

for religious freedom offered in that Bill was “that Almighty God hath

created the mind free.” Thomas Jefferson, A Bill for Establishing

Religious Freedom para. 1 (1779) in 5 The Founders’ Constitution 77,

77 (Philip B. Kurland & Ralph Lerner eds. 1987). Another was “[t]hat

all attempts to influence it by temporal punishments or burthens, or

by civil incapacitations, tend only to beget habits of hypocrisy and

meanness, and are a departure from the plan of the holy author of our

religion, who being Lord both of body and mind, yet chose not to

propagate it by coercions on either, as was in his Almighty power to do

ar ae

12

Marsh v. Chambers, 463 U.S. 783 (1983), the Court

ignored Lemon altogether. See Lynch, 465 U.S. at 679

(“In two cases, the Court did not even apply the Lemon

‘test.’”) (citing Marsh and Larson). In Lynch, the Court

even went “so far as to state that [the Lemon test] has

never been binding on us.” Santa Fe Indep. Sch. Dist..

530 U.S. at 319 (Rehnquist, C.J., dissenting) (citing and

quoting Lynch, 465 U.S. at 679). And in Lee v. Weisman,

the Court likewise “mentioned, but did not feel compelled

to apply, the Lemon test.” Jd. at 320. However much

maligned, though, the Lemon test seemingly lives on,

being irregularly invoked by the Court—most recently in

Santa Fe Independent School District v. Doe, 530 U.S. at

314. See also Lamb’s Chapel, 508 U.S. at 395 n.7

(“Lemon, however frightening it might be to some, has not

been overruled”).

Given the confusion and ambiguity that the Lemon

test has engendered—not to mention the ceaseless litiga-

tion hostile to religion that the test’s vagaries have

fueled—the amici States respectfully suggest that the

time has come simply to abandon it.®

3 At a minimum, the Court should take this opportunity to clarify

Lemon's purpose prong. In Board of Education of Westside Community

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

suggested that there is a distinction between purpose and motive

under the purpose prong of Lemon: “Even if some legislators were

motivated by a conviction that religious speech in particular was

valuable and worthy of protection, that alone would not invalidate the

Act, because what is relevant is the legislative purpose of the statute,

not the possibly religious motives of the legislators who enacted the

law.” Id. at 249 (plurality opinion). The Court has never explicitly

endorsed that distinction, however, or explained how to apply it.

Given the facts of this case, it is also worth noting that “a secular

purpose ... is all that Lemon requires,” not an “exclusively secular”

purpose. Lynch, 465 U.S. at 681 n.6 (emphasis added); Jaffree, 472

U.S. at 56 (“a statute that is motivated in part by a religious purpose

13

B. The “Coercion Test” Better Represents the

Framers’ Intent and Our Nation’s Historic

Practices.

In Allegheny, a case (not unlike this one) involving

holiday displays featuring religious objects, Justice

Kennedy proposed what has come to be called the “coer-

cion test.” After recognizing that “the Establishment

Clause permits government some latitude in recognizing

and accommodating the central role religion plays in our

society,” 492 U.S. at 657 (citing Lynch 465 U.S. at 678),

Justice Kennedy addressed the limits that the Clause

places on such recognition and accommodation of religion:

The ability of the organized community to rec-

ognize and accommodate religion in a society with

a pervasive public sector requires diligent obser-

vance of the border between accommodation and

establishment. Our cases disclose two limiting

principles: government may not coerce anyone to

support or participate in any religion or its exer-

cise; and it may not, in the guise of avoiding hostil-

ity or callous indifference, give direct benefits to

religion in such a degree that it in fact “establishes

a [state] religion or religious faith, or tends to do

so.” These two principles, while distinct, are not

unrelated, for it would be difficult indeed to estab-

lish a religion without some measure of more or

less subtle coercion, be it in the form of taxation to

supply the substantial benefits that would sustain

a state-established faith, direct compulsion to ob-

may satisfy the first [Lemon] criterion”). It likewise bears emphasis

that “a court has no license to psychoanalyze the legislators” or

decisionmakers. Id. at 74 (O’Connor, J., concurring in judgment).

14

servance, or governmental exhortation to religios-

ity that amounts in fact to proselytizing.

Id. at 659-60 (citation omitted) (quoting Lynch, 465 U.S.

at 678).

Three years later, the Court adopted Justice Ken-

nedy’s formulation of the coercion test in Lee v. Weisman:

The principle that government may accommo-

date the free exercise of religion does not super-

sede the fundamental limitations imposed by the

Establishment Clause. It is beyond dispute that,

at a minimum, the Constitution guarantees that

government may not coerce anyone to support or

participate in religion or its exercise, or otherwise

act in a way which “establishes a [state] religion or

religious faith, or tends to do so.”

505 U.S. at 587 (quoting Lynch, 465 U.S. at 678). The

Court has since applied the coercion test in Santa Fe

Independent School District v. Doe, 530 U.S. at 302

(quoting Lee, 505 U.S. at 587).

The coercion test best captures the Framers’ under-

standing of (i) what constituted an “establishment of

religion” as that term is used in the First Amendment and

(ii) a principal evil to be avoided by prohibiting such an

establishment. The writings of James Madison, George

Mason, and Thomas Jefferson suggest that all of them

viewed the elimination of government coercion or compul-

sion as being at the heart of religious freedom.

As this Court has noted, during debate on the religion

clauses in Congress in 1789, James Madison, the meas-

ures’ sponsor,

eid, he apprehended the meaning of the words to

xe, that Congress should not establish a religion,

and enforce the legal observation of it by law, nor

15

compel men to worship God in any manner con-

trary to their conscience. * * * He believed that

the people feared one sect might obtain a pre-

eminence, or two combine together, and establish a

religion to which they would compel others to con-

form.

McGowan, 366 U.S. at 441 (internal quotation marks

omitted) (quoting 1 Annals of Cong. 730-31 (1789))

(emphasis added). Madison’s earlier Memorial and

Remonstrance Against Religious Assessments likewise

targeted government compulsion in religious matters,

asserting as “a fundamental and undeniable truth, ‘that

Religion . . . can be directed only by reason and conviction,

not by force or violence.” James Madison, Memorial and

Remonstrance Against Religious Assessments 1 (1785)

(quoting Va. Decl. of Rights § 16 (1776)), in 5 The Foun-

ders’ Constitution 82 (Philip B. Kurland & Ralph Lerner

eds. 1987) (emphasis added).

Madison’s Memorial and Remonstrance relied, in turn,

on the Virginia Declaration of Rights for the proposition

that religious belief should not be coerced. In his first

draft of the religion clause of the Declaration of Rights,

George Mason—later a leading proponent of a bill of

rights for the Federal Constitution—likewise denounced

government compulsion in religious matters:

That as Religion, or the Duty which we owe to

our divine and omnipotent Creator, and the Man-

ner of discharging it, can be governed only by Rea-

son and Conviction, not by Force or Violence; and

therefore that all Men shou’d enjoy the fullest Tol-

eration in the Exercise of Religion, according to the

Dictates of Conscience, unpunished and unre-

strained by the Magistrate, unless, under Colour of

Religion, any Man disturb the Peace, the Happi-

ness, or Safety of Society, or of Individuals. And

16

that it is the mutual Duty of all, to practice Chris-

tian Forbearance, Love and Charity towards Each

other.

George Mason, First Draft of the Virginia Declaration of

Rights (1776), in 1 The Papers of George Mason 276, 278

(Robert A. Rutland ed., 1970) (emphasis added). As

finally adopted, the religion clause of the Declaration of

Rights retained Mason’s original denunciation of “force or

violence” in religious matters. See Va. Decl. of Rights § 16

(1776), in 5 The Founders’ Constitution 70. Madison used

this condemnation of government compulsion in religious

matters (which might otherwise be mistaken as relating

only to free exercise) to attack religious tax assessments,

a hallmark of establishment.

Thomas Jefferson likewise condemned government

compulsion in religious matters. According to Jefferson,

“[co}mpulsion in religion is distinguished peculiarly from

compulsion in every other thing.” That he said, is because

“I may grow rich by art I am compelled to follow, I may

recover health by medicines I am compelled to take agt.

my own judgmt., but I cannot be saved by a worship I

disbelieve & abhor.” Thomas Jefferson, Notes on Locke

(1776), in 1 The Papers of Thomas Jefferson 544, 547

(Julian P. Boyd ed., 1950) (based on John Locke, A Letter

Concerning Toleration (1689)). Jefferson’s famovs Bill for

Establishing Religious Freedom focused on eliminating

government coercion in religious matters so “that no man

shall be compelled to frequent or support any relig[ijous

Worship place or Ministry whatsoever, nor shall be

enforced, restrained, molested, or burthened in his body or

goods, nor shall otherwise suffer on account of his reli-

* Later paragraphs in the first draft are in Thomas Ludwell Lee’s

handwriting, but the excerpt reprinted above was written by Mason. 1

The Papers of George Mason at 279.

17

gious opinions or belief... .” Thomas Jefferson, A Bill for

Establishing Religious Freedom para. 2 (1779), in 5 The

Founders’ Constitution 77 (emphasis added). Jefferson’s

thinking was based in part on observations that “the holy

author of our religion, who being Lord both of body and

mind, yet chose not to propagate it by coercions on either,

as was in his Almighty power to do” and “[t]hat to compel

a man to furnish contributions of money for the propaga-

tion of opinions which he disbelieves and abhors, is sinful

and tyrannical.” Jd. para. 1 (emphasis added). These

references to compulsion and coercion were retained when

the Bill was adopted in 1786. See Act for Establishing

Religious Freedom (1786), in 5 The Founders’ Constitution

84, 84; cf. Letter from Thomas Jefferson to James Madi-

son (June 9, 1798) in 30 Papers of Thomas Jefferson 393,

393 (Barbara B. Oberg ed., 2003) (“[T]hey have brought

into the lower house a sedition bill, which among other

enormities, undertakes to make printing certain matters

criminal, tho’ one of the amendments to the Constitution

has so expressly taken religion, printing presses &c. out of

their coercion.”) (emphasis added).

Two caveats are in order. First, these statements by

Madison, Mason, and Jefferson indicate that the principal

evil targeted by the Establishment and Free Exercise

Clauses was government coercion through actual (i.e.,

physical or legal) compulsion in religious matters. That

is, the kind of coercion the Framers contemplated appar-

ently involved actions that would truly “compel” religious

belief, practice, or financial support with “force,” “vio-

lence,” or “law.” See also Lee, 505 U.S. at 640 (Scalia, J.,

dissenting) (“The coercion that was a hallmark of histori-

cal establishments of religion was coercion of religious

orthodoxy and of financial support by force of law and

threat of penalty.”); cf. Letter from Thomas Jefferson to

Rev. Samuel Miller (Jan. 23, 1808) in 5 The Founders’

Constitution 98, 98-99 (including as potential penalty for

18

failing to observe a day of fasting and prayer “some

degree of proscription perhaps in public opinion”). Having

said that, the question of precisely what kind of govern-

ment conduct or influence constitutes impermissible

coercion—e.g., whether actual or psychological—need not

divide the Court here as it did in Lee. Whether the

concept of unconstitutional coercion properly includes

psychological or peer pressure, see Lee, 505 U.S. at 593-

94, or not, see id. at 640—44 (Scalia, J., dissenting), that

kind of pressure is plainly absent in this case. As detailed

below, see infra at 19-20, the inanimate displays in this

case are entirely passive, involve no religious ceremony,

and entail no “captive audience.”

Second, the amici States do not contend that the coer-

cion test is a “one-size-fits-all” solution to Establishment

Clause problems. The Court has already eschewed “any

single test or criterion in this sensitive area.” Lynch, 465

U.S. at 679. As Justice O’Connor has observed, “the

Establishment Clause ... cannot easily be reduced to a

single test,” because “[t]here are different categories of

Establishment Clause cases, which may call for different

approaches.” Bd. of Educ. of Kiryas Joel Village Sch.

Dist. v. Grumet, 512 U.S. 687, 720 (1994) \O’Connor, J.,

“concurring in part and concurring in judgment). Amici’s

point is simply that, in the context of public displays

involving religious symbols, the coercion test best distin-

guishes permissible acknowledgment and accommodation

from impermissible establishment. Accordingly, the

coercion test should provide the frame of reference for this

case.

III.THE DISPLAYS IN THIS CASE DO NOT VIO-

LATE THE ESTABLISHMENT CLAUSE.

When judged (i) against the history and ubiquity of

public displays featuring religious symbols generally and

displays of the Ten Commandments in particular, and (ii)

19

in the light of the utter absence of governmental coercion,

it is evident that the historic-documents displays in this

case do not violate the Establishment Clause. Indeed, a

reversal should follow not only under the coercion test,

but under the endorsement and Lemon tests, as well.

A. Petitioners’ Displays Satisfy the Coercion

Test.

As noted above, public displays of the Ten Command-

ments—whether as symbols, plaques, or monuments—

date back well over a century. There are now (literally)

thousands of such displays across the country. The long

history and prevalence of these displays at courthouses

and seats of government suggest that the Decalogue is

displayed not to impose or advance some religious estab-

lishment, but instead merely to acknowledge the signifi-

cant role that religion has indisputably played in shaping

this Nation’s law and government. In addition, as this

Court’s Curator’s explanation suggests, see supra at 7, the

Ten Commandments are an immediately recognizable

ancient legal text, and are thus an appropriate symbol for

ancient law generally. The displays in this case, more-

over, are presented as only one part of a collection of

historically significant documents and images, further

underscoring the Commandments’ historic—as opposed to

religious—significance.

There is also no hint of government coercion—however

defined—in Petitioners’ displays. First, the displays are

entirely passive; they hang on a wall to be viewed or

ignored at a passerby’s option. Second, no one is invited,

much less coerced, to participate in any kind of religious

ceremony; there are no organized prayers, hymns, or the

like associated with the displays. Finally, there is no

“captive audience” problem, as may sometimes be the case

in other settings; again, courthouse visitors are free to

ignore the displays entirely. The absence of government

20

coercion, combined with the history and ubiquity of

similar Ten Commandments displays, renders the dis-

plays in this case permissible under the Establishment

Clause.

B. Petitioners’ Displays Satisfy the Endorse-

ment Test.

As noted above, the result should be the same even

under the endorsement or Lemon tests. As for endorse-

ment, Justice O’Connor has observed more than once that

the “history and ubiquity” of a challenged practice is an

important consideration under the endorsement test

“because it provides part of the context in which a reason-

able observer evaluates whether a challenged governmen-

tal practice conveys a message of endorsement of relig-

ion.” Allegheny, 492 U.S. at 630 (O'Connor, J., concurring

in part and concurring in judgment); see also Newdow,

124 S. Ct. at 2323-24 (O’Connor, J., concurring in judg-

ment). A reasonable observer would be particularly

unlikely to perceive endorsement in this case—where the

Decalogue is displayed as only one of nine documents and

symbols, all depicted for their historical significance to

the Nation’s system of law and government. Indeed,

removing the Ten Commandments from such a historical

display would communicate a message of hostility—not

neutrality—toward religion, which a reasonable observer

(who, presumably, would be familiar with the Command-

ments’ removal) surely would not miss.

C. Petitioners’ Displays Satisfy the Lemon Test.

The court of appeals based its decision striking down

the displays in this case not on the presence of coercion or

endorsement® but, instead, on the presence of what it

5 Only Judge Clay joined the main opinion’s endorsement test

analysis.

21

perceived to be an impermissible religious purpose under

the Lemon test. The court’s faulty purpose-prong analysis

underscores just how badly the secular-purpose inquiry

has gone off track.

The court of appeals’ reasoning was based largely on a

misapplication of Stone v. Graham, 449 U.S. 39 (1980)

(per curiam), outside the context of public school class-

rooms. The court’s rote application of Stone failed to

account for the fundamental differences between the

schoolhouse and courthouse settings.

In public elementary and secondary schools, this

Court has said, “[t]he State exerts great authority and

coercive power through mandatory attendance require-

ments, and because of the students’ emulation of teachers

as role models and the children’s susceptibility to peer

pressure.” Edwards v. Aguillard, 482 U.S. 578, 584

(1987). As a result, this “Court has been particularly

vigilant in monitoring compliance with the Establishment

Clause in elementary and secondary schools.” Id. at 583—

84. These atmospheric and “coercive power” concerns

were heightened in Stone, where the posting of the Ten

Commandments in a classroom setting functioned “purely

as a religious admonition.” Lynch, 465 U.S. at 679. No

such “admonition” is present in this case, however, where

both the setting and the manner of display are entirely

different.

As the Chief Justice has observed (and, again, as this

Court’s Curator’s explanation confirms, see supra at 7), in

addition to their obvious religious importance, the Ten

Commandments “[u]ndeniably ... have secular signifi-

cance as well, because they have made a substantial

contribution to our secular legal codes.” City of Elkhart v.

Books, 532 U.S. 1058, 1061(2001) (Rehnquist, C.J.,

dissenting from denial of certiorari). Placement of the

Ten Commandments in a courthouse or seat of govern-

22

ment, whether alone or with other historic documents,

“emphasizes the foundational role of the Ten Command-

ments in secular, legal matters.” Jd. Given the secular

significance of the Decalogue and the manner in which

posting it in a courthouse emphasizes its secular, legal

impact, it is clear that Petitioners had a legitimate

secular purpose for displaying the Ten Commandments in

their courthouses. Certainly, Petitioners’ actions were

not “motivated wholly by religious considerations,” Lynch,

465 U.S. at 680, as would be required to find a violation

under the purpose prong of Lemon. See also supra note 3.

Under Lynch and Allegheny, Petitioners’ purpose is best

understood as a permissible effort to “acknowledg[e] ...

the role of religion in American life.” Lynch, 465 U.S. at

674.

Further misapplying Stone, the court of appeals re-

quired that, in order to demonstrate a legitimate secular

purpose, “the government must present the Ten Com-

mandments objectively and must integrate them with a

secular message,” 354 F.3d at 449, by demonstrating an

“analytical or historical connection,” id. at 451, between

the Decalogue and other documents in a public display.

In Stone, however, this Court merely observed that “[t]his

is not a case in which the Ten Commandments are inte-

grated into the school curriculum, where the Bible may

constitutionally be used in an appropriate study of his-

tory, civilization, ethics, comparative religion, or the like.”

449 U.S. at 42. As Chief Judge Boggs pointed out, Stone’s

dictum was not “an attempt to state binding limits on all

future constitutionally valid displays.” Am. Civil Liber-

ties Union of Ky. v. McCreary County, 361 F.3d 928, 933

(6th Cir. 2004) (Boggs, C.J., dissenting from denial of

rehearing en banc). But even if it were, there was noth-

ing in Stone to “suggest that a display that includes the

Ten Commandments as part of an array containing eight

or nine otherwise secular, historical documents, violates

23

the First Amendment unless the display also provides an

explicit analytical or historical connection between the

clearly secular and the arguably religious items.” Jd.

As Judge Ryan further demonstrated, Lynch did not

require an “analytical or historical connection” between

the créche and the “reindeer pulling Santa’s sleigh,” 465

U.S. at 671, and Allegheny did not require an “analytical

or historical connection” between the menorah and the

Christmas tree. 354 F.3d at 475 (Ryan, J., dissenting).

More significantly, he observed, the court of appeals’

misapplication of Stone would effectively doom most

displays with religious symbols because “[g]lovernment

monuments and displays 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. Accordingly, the test devel-

oped by the court of appeals is not only unworkable, but

also wholly inconsistent with Lynch and Allegheny.

Finally, the courts below erred in imputing to Peti-

tioners’ current displays an allegedly impermissible

purpose underlying earlier displays. “The district court

found it ‘significant’ that [Petitioners] original displays,

containing only the Ten Commandments ‘were erected in

violation of the Supreme Court’s clear ruling in Stone.’ ”

354 F.3d at 457 (quoting Am. Civil Liberties Union of Ky.

v. McCreary County, 145 F. Supp. 2d 845, 849-50 (E.D.

Ky. 2001) (footnote omitted)). “ “This defiance,’ according

to the district court, ‘imprinted the defendants’ purpose,

from the beginning with an unconstitutional taint....’”

Id. (quoting 145 F. Supp. 2d at 850 (footnote omitted)).

The court of appeals faulted the district court’s analysis,

which “appeared to afford exclusive weight to [Petition-

ers] past conduct without addressing the specific content

of the revised displays,” but agreed that “the history of

[Petitioners] involvement with the displays strongly

indicated that the primary purpose was religious.” 354

24

F.3d at 458; see also 361 F.3d at 931 (Clay, J., concurring

in denial of rehearing en banc).

As an initial matter, given the differences between the

courthouse and schoolhouse settings, even the premise of

the district court’s “unconstitutional taint” analysis is

faulty: It is by no means clear that the original court-

house displays violated Stone. But even if Petitioners’

original displays were unconstitutional, that should not

“taint” forever Petitioners’ good-faith efforts to come into

compliance. If government is to function, its officials

must be allowed to correct their mistakes. They should

not labor under an unconstitutional taint of past miscon-

duct while attempting to set matters straight. This is

especially true in the field of Establishment Clause

jurisprudence, where the line between the permissible

and the impermissible is frequently “a blurred, indistinct,

and variable barrier depending on all the circumstances

of a particular relationship,” Lemon, 403 U.S. at 614, that

can only be “dimly perceive[d],” id. at 612. In reality,

what Petitioners’ efforts “strongly indicate[d]” was a bona

fide intention to comply with the Constitution.

By misinterpreting Stone to fashion its own unprece-

dented test for Ten Commandments displays, the court of

appeals erred in its purpose-prong analysis under Lemon.

Under this Court’s decision in Lynch, Petitioners had a

legitimate secular purpose—anchoring modern law in

ancient sources—for their courthouse displays. This

secular purpose, combined with the lack of endorsement

of religion and the utter absence of coercion, demonstrates

that the displays in this case represented an entirely

acceptable and proper “acknowledgment ... of the role of

religion in American life.” 465 U.S. at 674.

25

CONCLUSION

The judgment of the United States Court of Appeals

for the Sixth Circuit should be reversed.

Respectfully submitted,

TROY KING

Attorney General of Alabama

KEVIN C. NEWSOM

Solicitor General

CHARLES B. CAMPBELL*

Assistant Attorney General

*Counsel of Record

STATE OF ALABAMA

11 South Union Street

Montgomery, Alabama 36130-0152

(334) 242-7300

Counsel for the State of Alabama,

Amicus Curiae

December 8, 2004 (Additional Counsel Listed

Inside Front Cover)