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

| Supreme Coun US

. FILED

LAs, °

(37, JAN 4 ~ 2005

No. 03-1693 OFFICE OFTHE CLERK

In the

Supreme Court of the United States

McCREARY COUNTY, KENTUCKY; JIMMIE GREENE

as McCreary County Judge Executive; PULASKI

COUNTY, KENTUCKY; DARRELL BESHEARS as

Pulaski County Judge Executive,

Petitioners,

vs.

AMERICAN CIVIL LIBERTIES UNION OF

KENTUCKY; LOUANNE WALKER; DAVE HOWE;

LAWRENCE DURHAM; PAUL LEE,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF AMICUS CURIAE AMERICAN

ATHEISTS IN SUPPORT OF THE RESPONDENTS

Robert J. Bruno

Counsel of Record

ROBERT J. BRUNO, LTD.

107 Professional Plaza

1601 East Highway 13

Burnsville, Minnesota 55337

(952) 890-9171

Counsel for Amicus Curiae American Atheists

2005 — Bachman Legal Printing & (612) 339-9518 @ 1-800-715-3582 @ Fax (612) 337-8053

ABLE OF T

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STATEMENT OF INTERESTS OF AMICUS CURIAE....... ]

SUMMARY OF ARGUMENT.................sceeeeeeeneeeees 3

eT ticiiensictasininicinnncconnintennenninaneniiamnnimaneenevenemeneeeanans 4

I. THE PETITIONERS’ DISPLAY OF THE TEN

COMMANDMENTS VIOLATES THE VALID

SECULAR PURPOSE REQUIREMENT OF THE

ESTABLISHMENT CLAUSE REGARDLESS OF

ANY ALLEGED SECULAR CONTENT OR

II. THE PETITIONERS’ DISPLAY OF THE TEN

COMMANDMENTS UTTERLY FAILS TO PASS

CONSTITUTIONAL MUSTER AS AN

ENDORSEMENT OF RELIGION CONSIDERING

ITS CONTENT AND CONTEXT..................04. 11

I icreiesiastnsdnstniciphiundinesutidinmepeanianenmpeseniianees 14

IE dccaduitinennnanencubstnnianennsdnesiininninanesenen A-1

Letter of consent by Petitioner’s counsel........... A-1l

Letter of consent by Respondent’s counsel......... A-2

TABLE OF AUTHORITIES

CASES: Page

ACLU v. McCreary County, Kentucky,

354 F.3d 438 (6th Cir. 2003)............... 6, 7, 8,9, 10

Capitol Square Review and Advi _V. Pi .

$15 U.S. 733 (1995)......0:<ssesscascssuusennenee 13

County of Allegheny v. LU i "

492 U.S. S73 (BSGD).......00+0sseccseunsnuneeee 11, 12, 13

Edwards v. Aguillard, 482 U.S. 578 (1987)......... 4, 5,9, 10

Grand Rapids v. Ball, 473 U.S. 373 (1985)............... 12

Lemon v. Kurtzman, 403 U.S. 602 (1971)............... passim

Lynch v. Donnelly, 465 U.S. 668 (1984).................. 4,14

Meuller y. Allen, 463 U.S. 388 (1983)............... cc eee 4

Murray v. Curlett, 228 Md. 239, 179 A.2d 268 (1962).. |

Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290 (2000)... 10, 12

School District of Abington Township, Pennsylvania v.

Schempp, 374 U.S. 203 (1963).................e eee l

Stone v. Graham, 449 U.S. 39 (1980)............... 5, 6, 7,12

Wallace v. Jaffree, 472 U.S. 38 (1985)..................... 5, 12

OTHER AUTHORITIES:

Atheism, Madalyn Murray O’ Hair, American Atheists, at

http://www. atheists.org/Atheism/atheism.html (last

visited December 9, 2004).............scccsecccscees 1-2

CONSTITUTIONAL PROVISIONS:

lst Amendment, U.S. Constitution.......................... 3,9

14th Amendment, U.S. Constitution......................... 3

iil

INTEREST OF AMICUS CURIAE'

American Atheists is a volunteer organization active in

protecting the rights of Atheists and promoting tolerance and

understanding of the Atheist viewpoint. Founded in 1963 by

Madalyn Murray O’Hair,’ for over thirty years American

Atheists has been dedicated to the separation of church and

state and a tireless advocate of the Atheist cause? American

Atheists’ perspective is rooted in the philosophy of

materialism, “which holds that nothing exists but natural

phenomenon.” 4

The indestructible foundation of the whole edifice of

Atheism is its philosophy, materialism, or naturalism,

as it is also known. That philosophy regards the world

as it actually is, views it in the light of the data

provided by progressive science and social experience.

The parties have consented to the filing of this brief. A copy of the

letter of consent of the Petitioner and Respondent is included in the

Appendix. Counsel for American Atheists authored this brief in its

entirety. No person or entity, other than American Atheists, its supporters

or its counsel, made a monetary contribution to the preparation or

submission of this brief.

> Ms. O’Hair founded American Atheists following the United States

Supreme Court ruling in School District of Abington Township,

Pennsylvania v. Schempp, 374 U.S. 203 (1963), overturning the Maryland

Court of Appeals’ approval of public school bible readings in her case,

Murray vy. Curlett, 228 Md. 239, 179 A.2d 698 (1962).

> Ms. O’Hair and American Atheists’ work includes the founding of the

first known Atheist library and archives in the United States, production of

American Atheist Forum, the first regularly scheduled television program

produced, directed, and broadcast by Atheists, founding of the American

Atheist Press, the American Atheist magazine, and the American Atheist

Radio Series, and countless other cultural and legal contributions to the

Atheist cause.

Madalyn Murray O’Hair, Atheism, American Atheists, at

http://www.atheists.org/Atheism/atheism.htm] (last visited December 9,

2004).

Atheistic materialism is the logical outcome of

scientific knowledge gained over the centuries.°

No gods, spirits, fairies, or other imagined entities pull at the

strings of humanity. The materialist philosophy of Atheism

promotes a positive viewpoint and provides the impetus to

effect change.

Materialism liberates us, teaches us not to hope for

happiness beyond the grave but to prize life on earth

and strive always to improve it. Materialism restores

to man his dignity and his intellectual integrity. Man is

not a worm condemned to crawl in the dust, but a

human being capable of mastering the forces of nature

and making them serve him. Materialism compels

faith in the human intellect, in the power of knowledge

in man's ability to fathom all the secrets of nature and

to create a social system based upon reason and

justice. Materialism's faith is in man and his ability to

transform the world by his own efforts. It is a

philosophy in every essence optimistic, life-asserting,

and radiant. It considers the struggle for progress as a

moral obligation, and impossible without noble ideals

that mages men to struggle, to perform bold, creative

work.

Given American Atheists’ unswerving dedication to the

Atheist cause for over three decades, American Atheists

submits this brief in support of Respondents and urges the

Court to affirm the decision of the United States Court of

Appeals for the Sixth Circuit.

Id

° Id.

SUMMARY OF THE ARGUMENT

The two courthouse displays of the Ten

Commandments among other documents consisting of the

Star Spangled Banner, the Declaration of Independence, the

Mayflower Compact, the Bill of Rights, the Magna Carta, the

National Motto, the Preamble to the Kentucky Constitution,

Lady Justice, (hereinafter “Secularizing Documents”), and a

one page prefatory document alleging a foundational role of

the Ten Commandments in the Declaration of Independence

and our legal tradition, violate the prohibition of the

Establishment Clause of the First Amendment that “Congress

shall make no law respecting an establishment of religion,” as

applied to the states through the Fourteenth Amendment. No

plausible reason justifies the endorsement and promotion of

the sacred text of Judaism and Christianity by including it

among the Secularizing Documents other than the

endorsement of a particular set of religious beliefs. As a

result, the courthouse displays lack a valid secular purpose

under the first Lemon prong.

In addition, the lack of a demonstrated relevance of

the Ten Commandments to the Secularizing Documents or to

any other overarching secular theme is sufficiently likely to

be perceived by adherents of the Ten Commandments as an

endorsement, and by nonadherents as a disapproval, of their

individual religious choices. As a result, the Ten

Commandments courthouse displays violate the second prong

of Lemon. Amicus curiae American Atheists respectfully

requests that the Court affirm the decision of the United States

Court of Appeals for the Sixth Circuit.

ARGUMENT

I. THE PETITIONERS’ DISPLAY OF THE TEN

COMMANDMENTS VIOLATES THE VALID

SECULAR PURPOSE REQUIREMENT OF THE

ESTABLISHMENT CLAUSE REGARDLESS OF

ANY ALLEGED SECULAR CONTENT OR

CONTEXT.

: To satisfy the first prong of Lemon, a atenges

statute “must have a secular legislative purpose.” Lemon v.

Kurtzman, 403 U.S. 602, 612 (1971). This prong is violated

if the statute is “motivated wholly by an impermissible

purpose.” Lynch v. Donnelly, 465 U.S. 668, 680 (1984).

While courts are normally deferential to government’s

articulation of secular purpose, close examination is important

to reveal insincere or sham purposes. Edwards v. Aguillard,

482 U.S. 578, 586-87 (1987). Government action lacks a

secular purpose when the primary purpose is a religious one.

Id., at 594. This is especially true “[w]hen both courts below

are unable to discern an arguably valid secular purpose.” Id.,

n. 15. There is a reluctance to attribute unconstitutional

motives to the states when there is “a plausible secular

purpose ... discernable on the face of the statute.” Meuller v.

Allen, 463 U.S. 388, 394-95 (1983). But where a legislature

has a pre-eminent religious purpose in enacting a statute, a

court need not be blind to that purpose, even where the

legislature proffers a secular purpose. Edwards, 482 U.S.

578, 589-590.

It is not a trivial matter, however, to require

that the legislature manifest a secular purpose

and omit all sectarian endorsements from its

laws. That requirement is precisely tailored to

4

the Establishment Clause’s purpose of assuring

that Government not intentionally endorse

religion or a religious practice.

Wallace v. Jaffree, 472 U.S. 38, 75 (1985) (O’Connor, J.,

concurring). “This intention may be evidenced by promotion

of religion in general, . . . or by advancement of a particular

religious belief.” Edwards, 482 U.S. 578, 585. Thus, in

addition to insincerity or sham of the stated purpose, the lack

of a secular purpose may be found on the face of a statute by

the (1) implausibility of the proffered purpose, (2) promotion

of religion in general, or (3) advancement of a particular

religious belief. In this case, the proffered secular purpose is

implausible, promotes religion in general, and advances a

particular religious belief.

This Court has already unequivocally determined the

religious nature of the Ten Commandments. In Stone v.

Graham, 449 U.S. 39 (1980), this court was faced with an

“avowed” secular purpose recited in the text of the law

requiring their posting on the schoolhouse wall, and in small

print at the bottom of each display: “The secular application

of the Ten Commandments is clearly seen in its adoption as

the fundamental legal code of Western Civilization and the

Common Law of the United States.” Id, at p. 40. The Ten

Commandments’ religious content was held to be

unmistakable when this Court held that “[t]he Ten

Commandments are undeniably a sacred text in the Jewish

and Christian Faiths and no legislative recitation of a

supposed secular purpose can blind us to that fact.” Id., at p.

41. The Court referred to the alleged partial secular content

of the Decalogue as merely “arguable”:

The Commandments do not confine

themselves to arguably secular matters, such as

honoring one's parents, killing or murder,

adultery, stealing, false witness, and

covetousness. See Exodus 20: 12-17;

Deuteronomy 5: 16-21. Rather, the first part of

the Commandments concerns the religious

duties of believers: worshipping the Lord God

alone, avoiding idolatry, not using the Lord's

name in vain, and observing the Sabbath Day.

See Exodus 20: 1-11; Deuteronomy 5: 6-15.

Id., at pp. 41-42 (footnote omitted). As a result, this Court in

Stone rejected the avowed secular purpose as facially

implausible. Id.

The secular purposes for the displays enunciated by

Petitioners in the proceedings below consist of (1) to erect a

Ten Commandments display consistent with the

Establishment Clause; (2) to demonstrate that the Ten

Commandments have a foundational role in American law

and government; (3) to demonstrate the significance of the

Ten Commandments in providing the moral background for

the Declaration of Independence and the foundation of our

legal tradition; and (4) to educate citizens about the

foundational role of the Ten Commandments in the law and

government. ACLU of Kentucky v. McCreary County,

Kentucky, 354 F.3d 438, 446-447. Petitioners’ merits brief

articulates several allegedly secular purposes, i.e., “to educate

about law,” Brief For Petitioners, at p. 5; educating the public

about “some documents that played a role in the foundation of

our system of law and government,” id., at p. 9; the “purpose

is ... to post a Display about law.” id., at p. 10; “The Display

is about law, not religion,” id., at p. 11; “educating the public

6

about some of the documents that influenced American Law

and government.” id., at p. 16.

Because none of the proffered purposes articulated by

the Petitioners for the displays of the Ten Commandments are

a valid secular purpose, the displays must be invalidated

under the first Lemon prong. First, the desire of the

Petitioners to comport their conduct with the requirements of

the Establishment Clause is not a valid secular purpose under

Lemon. Indeed, all government action is required to comport

with the law, and the acceptance of this as a valid purpose

under the first Lemon prong would rendez it a nullity.

Second, purposes two, three, and four, proffered in the

proceedings below, to demonstrate the foundational role of

the Ten Commandments in American law, government, and

the Declaration of Independence, also fail the secular purpose

test of the first Lemon prong. Because the displays fail to

incorporate the Ten Commandments into an overarching

secular context, this Court’s decision in Stone, supra, is

dispositive. In Stone, the Court opined that the Ten

Commandments might be a constitutionally acceptable part of

a course of study of “history, civilization, ethics, comparative

religion, or the like,” however, “[p]osting of religious texts on

the wall serves no such educational function.” 449 U.S. 39,

42 (1980).

An examination of the content of the displays reveals

a lack of a nexus between the Ten Commandments and the

proffered secular purpose, which is the alleged foundational

role of the Ten Commandments in American law,

government, and the Declaration of Independence. The

contents of the displays reveal no connection between the

admonitions contained in the Ten Commandments and the

contents of any of the other Secularizing Documents. None

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of the Secularizing Documents is related to the portion of the

Ten Commandments that specify the religious duties owed to

a god. Neither is there any relation between the Ten

Commandments’ admonitions against dishonoring parents,

stealing, killing, bearing false witness, and coveting, on the

one hand, and the contents of the Secularizing Documents.

In addition, the foundational role of the Ten

Commandments in American law, government, and the

Declaration of Independence is likewise unspecified in the

record below. ACLU of Kentucky v. McCreary County,

Kentucky, 354 F.3d 438, 452-453. Indeed, which law of

Kentucky or elsewhere derives from the commandment

“Remember the Sabbath day to keep it holy,” which

presumably includes requiring slave owners to give them a

day off? Which laws of Kentucky or elsewhere derive from

the commandment that we don't have freedom to express anti-

theistic opinions or that we are to not covet our neighbor's

wife? Nowhere do the Ten Commandments prohibit slavery,

drunken driving, or father-daughter incest. They set no useful

health standards, no monetary or judicial criteria, and no

social service standards. They are useless in matters of

probate, contract law, human/civil rights, and constitutional

law. Of the Ten Commandments, four address themselves to

how and when to worship the proper gods, and two concern

women simply as pieces of property. Nowhere in the

Declaration of Independence are there any admonitions found

in the Ten Commandments or anything colorably related to

them.

Moreover, three of the Ten Commandments are

contrary to the United States Constitution thus negating the

claim that they are the foundations of our laws. The

commandment that “thou shalt have no other gods before me”

8

is directly contrary to the Establishment Clause of the First

Amendment. The commandments that “Thou shalt not make

unto thee any graven image,” and “Thou shalt not take the

name of the LORD thy God in vain” are in direct opposition

to the guarantees of freedom of speech and expression in the

First Amendment. The first four commandments speak to

“pleasing a god.” The Declaration Of Independence speaks of

just the opposite: “That to secure these rights, Governments

are instituted among Men, deriving their just powers from the

consent of the governed.”

The Sixth Circuit opinion found it significant that

neither the defendants nor the dissent attempted to buttress the

historical claim that the Ten Commandments have a

foundational role in the law or the Declaration of

Independence. ACLU of Kentucky v. McCreary County,

Kentucky, 354 F.3d 438, 452. Government action lacks a

secular purpose when the primary purpose is a religious one,

especially “[w]hen both courts below are unable to discern an

arguably valid secular purpose.” Edwards, 482 U.S. 578, 594

n. 15. When both courts below have been unable to discern

an arguable secular purpose, when the contents of the display

fail to show any connection between the Ten Commandments

and an arguably secular purpose, and when the proponents of

the displays are unable to articulate a nexus between the Ten

Commandments and any arguably secular purpose for the

displays, this Court must presume that such a nexus and

connection does not exist and that there is no secular purpose

in including the Ten Commandments in the displays among

the Secularizing Documents.

The alleged secular purposes that are proffered in the

Brief For Petitioners also fail the Lemon purpose prong for a

number of reasons. First, the Petitioners’ shifting statements

9

of the purpose of the displays throughout the course of the

proceedings below and in their merits brief, evinces an

insincerity of the avowed purposes. By adopting shifting

secular purposes Petitioners have cast doubt on their sincerity.

Moreover, they have effectively denied the lower courts the

Opportunity to pass upon their claim under the Lemon purpose

prong.

Second, assuming that Petitioners’ avowed purpose is

to educate about both religious law and secular law under the

generic topic of “law,” Petitioners’ selection of the sacred

religious text of the Judeo Christian tradition as the only

example of religious law, belies the avowed purpose. Brief

for Petitioners, at p. 5 ( “The Display is about law and. . . the

Decalogue is law”); Id., at p. 11 (“The Display is about law,

not religion. The Ten Commandments are law...”’)

Third, the history of the display casts doubt upon the

current avowed purpose. This Court has specifically looked

to the history of the challenged government action to

determine its purpose. Santa Fe Ind. School Dist. v. Doe, 530

U.S. 290, 315 (“This history indicates that the District

intended to preserve the practice of prayer before football

games.”) The history of the courthouse displays indicates a

purpose of inclusion of the Ten Commandments above all,

and camouflaging them by inclusion among the Secularizing

Documents.

Fourth, the displays also fail this Court’s secular

purpose prohibitions against promotion of religion in general

and advancement of a particular religious belief. Edwards,

supra. The displays purport to present the King James

Version of the Ten Commandments. _ACLU of Kentucky v.

McCreary County, Kentucky, 354 F.3d 438, 443 n. 2. Thus, it

cannot be denied that the displays promote and advance a

10

particular religious belief. As a result, the displays’

promotion of either religion in general or the advancement of

a particular religious belief compels a finding that they lack a

valid secular purpose. For the foregoing reasons, the displays

at it issue fail the secular purpose prong of Lemon and must

be enjoined under the Establishment Clause.

The decision of the United States Court of Appeals for

the Sixth Circuit must be affirmed under the first Lemon

prong.

II. THE PETITIONERS’ DISPLAY OF THE TEN

COMMANDMENTS UTTERLY FAILS TO PASS

CONSTITUTIONAL MUSTER AS AN

ENDORSEMENT OF RELIGION CONSIDERING

ITS CONTENT AND CONTEXT.

In evaluating the government’s use of religious

symbolism under the second Lemon prong, the Supreme

Court has held that it “must ascertain whether ‘the challenged

governmental action is sufficiently likely to be perceived by

adherents of the controlling denominations as an

endorsement, and by the nonadherents as a disapproval, of

their individual religious choices.’”” County of Allegheny v.

~ ACLU of Pittsburgh, 492 U.S. 573, 597 (1989).

A public school’s sponsorship of a religious message

is impermissible under the establishment of religion

clause of the Federal Constitution's First Amendment,

because such sponsorship sends (1) the ancillary

message to members of the audience who are

nonadherents that they are outsiders and not full

members of the political community; and (2) an

accompanying message to adherents that they are

11

insiders and favored members of the political

community.

Santa Fe Ind. Such. Dist. v. Doe, 530 U.S. 290, 309-310

(2000); See also, Comaty of Allathess, 492 U.S. 573, 593-

597 (1989) (citing Wallace v. Jaffree, 472 U.S. at 70

(O’Connor, J., concurring in the judgment)) and Grand

Rapids v. Ball, 473 U.S. 373, 389-392 (1985)). The analytical

task under County of Allegheny, supra, is to determine

whether the religious symbol “in [its] ‘particular physical

setting[],” has the effect of endorsing or disapproving

religious beliefs.” County of Allegheny, 492 U.S. 573, 597

(1989). >

In Stone, supra, this Court relied upon the lack of the

Ten Commandments’ integration into the school curriculum

in an otherwise secular context for the appropriate secular

study of history, civilization, ethics, comparative religion, or

the like. Id., at 42. It held that the posting of the texts on the

wall “serves no such educational function.” Id. Here,

although the petitioners attempt to articulate arguably secular

purposes for the displays, petitioners make no attempt to

explain how the Ten Commandments are related to the

purpose of the displays. Indeed, there is nothing obvious in

the text of the Ten Commandments that in any way suggests a

relation to the Secularizing Documents or to any other

overarching secular theme.

Just as this Court held in Stone that posting the text on

the school house wall served no educational function, the

displays of the Ten Commandments bear no rational

relationship to the Secularizing Documents or the proffered

secular purposes. Indeed, the placement of the Ten

Commandments among the Secularizing Documents indicates

that the government places this religious text on a par with the

12

other indisputably important foundational and historical icons

of our government and law. Such an endorsement of what is

indisputably an important religious text serves to convey the

message to adherents of the Ten Commandments of

government endorsement of their religious choices, and to

nonadherents of government disapproval of their individual

religious choices.

This Court has not adopted the reasonable observer

acquainted with the text, legislative history, and

implementation of the statute standard of Justice O’Connor’s

concurrence in Capitol Square, a case involving a government

limited forum, for government religious displays. Cf., 515

U.S. 753, 779-780 (O’Connor, J., concurring in part and

concurring in judgment) and 515 U.S. 753, 797-807 (Brennan,

J., dissenting). Indeed, Justice O’Connor’s reasonable

observer who is so acquainted standard appears to be mostly

impractical of application. How much research must the

reasonable observer undertake to discover the legislative or

other history of the displays, the rationale for the location of

their placement, or the shifting arguably secular purposes

proffered by their proponents? Apparently, under Justice

O’Connor’s reasonable acquainted observer standard, the

research must be exhaustive. However, the failure of Justice

O’Connor’s reasonable observer to have fully acquainted

herself with the legislative and other history of a government

religious display bears no relationship to the “perce[ption] by

adherents of the controlling denominations as an

endorsement, and by the nonadherents as a disapproval, of

their individual religious choices.” County of Allegheny, 492

U.S. 573, 597. Indeed, this Court’s “adherent/nonadherent”

perceptions test for endorsement is the one most consonant

with the purposes of the Establishment Clause.

13

What is crucial is that a government practice not have

the effect of communicating a message of government

endorsement or disapproval of religion. It is only

practices having that effect, whether intentionally or

unintentionally, that make religion relevant, in reality

or public perception, to status in the political

community.

Lynch v. Donnelly, 465 U.S. 668, 692 (1984) (O’Connor, J.,

concurring). Status in the political community should not

and does not depend upon conducting the exhaustive research

into legislative history and motives that Justice O’Connor’s

reasonable acquainted observer standard would impose.

As a result, the displays violate the second prong of

Lemon and must be enjoined under the Establishment Clause.

The decision of the United States Court of Appeals for the

Sixth Circuit must be affirmed under the second Lemon

prong.

CONCLUSION

The Ten Commandments courthouse displays, because

they bear no plausible relationship to the Secularizing

Documents or to any overarching secular theme, violate the

purpose prong of Lemon. In addition, the displays are

lacking in any secular context that would cause a reasonable

observer to perceive anything but the government’s

endorsement or disapproval of the religious beliefs contained

in the Ten Commandments. Amicus curiae American

Atheists respectfully requests that the United States Court of

Appeals for the Sixth Circuit be affirmed.

14

Dated: January 4, 2005

Respectfully submitted,

Robert J. Bruno

Counsel of Record

ROBERT J. BRUNO, LTD

1501 E. Highway 13, Suite 107

Burnsville, MN 55337

952-890-9171

Attorney for Amicus Curiae

American Atheists

15

Liberty Counsel

210 East Palmetto Avenue http://www.lc.org

Longwood, Florida 32750 liberty @lc.org

(407) 875-2100 Telephone (407) 875-0770 Fax

November 23, 2004

Robert J.-Bruno, Esq.

Robert J. Bruno, Ltd.

107 Professional Plaza

1601 E Hwy 13

Burnsville, MN 55337 .

Re: ACLU of Kentucky, et al v.

McCreary County, Kentucky and

Pulaski County, Kentucky, et al.

Ref. No: 34-143

Case No: 99-507

Appeal: 01-5935

SC No: 03-1693

Dear Mr. Bruno:

This letter serves as consent to file an amicus brief in the

case of McCreary County, et al. v. ACLU of Kentucky, et al.

Sincerely,

s/ \

Erik W. Stanley

EWS:clm

A-1

ACLU

425 W. Muhammad Ali Blvd.

Suite 230

Louisville, KY 40202-2956 November 22, 2004

PH 502.581.9746

FAX 502.589.9687

www.aclu-ky.org

nt by fax /479-3230

Hon. William K. Suter, Clerk

Supreme Court of the United States

1 First Street, N.E.

Washington, D.C. 20543

Re: McCreary County, Kentucky v.

American Civil Liberties Union of Kentucky

Case No. 03-1693

Dear Gen. Suter:

I am counsel of record for the respondents, American Civil

Liberties Union of Kentucky, et al. We hereby globally

consent to the filing of all amicus curiae briefs in this case.

Thank you for your consideration in this matter. Please feel

free to contact me if you have any questions.

Yours truly,

s/

David A. Friedman

General Counsel

DAF/ms

A-2