# Amicus Curiae Brief — McCreary County v. American Civil Liberties Union of Ky. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0005%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2005 - **Citation:** 545 U.S. 844 ## Text \ 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0005%3A10. Public record. Not legal advice.