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

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Supreme Court, U.S.

A) (26 DEC 13 294

Nos. 03-1500; 03-1693

OFF THE CLERK

IN THE

Supreme Court of the Anited States

THOMAS VAN ORDEN

Petitioner,

RICK PERRY, et al.

Respondent,

On Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

MCCREARY COUNTY, KENTUCKY, et al.

Petitioners,

AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, et al.

Respondents,

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

Brief of Amici Curiae

American Humanist Association, Association of Humanistic Rabbis,

American Ethical Union, Atheist Alliance International, Covenant

of Unitarian Universalist Pagans, Equal Partners in Faith,

Humanist Society, The Humanist Institute, HUUmanists, Institute

for Humanist Studies, International Humanist and Ethica: Union,

Internet Infidels, National Center for Science Education, Secular

Coalition for America, Skeptics Society, Society for Humanistic

Judaism, Unitarian Universalist Association

In Support of Petitioner, Thomas Van Orden /Respondents,

American Civil Liberties Union of Kentucky, et al.

Jacot B. Rolls Elizabeth L. Hileman

2915 Porter Street, NW Counsel of Record

Washington, DC 20008 American Humanist —

Association

7979 Old Georgetown Road,

— Suite 600

Bethesda, MD 20814

(301) 652-1448

December 13, 2004

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

One,

Fail All” Three-Prong Test, Is A

Model To

Assess The Constitutionality Of

Government

nic

ible Reflection Of The Values

Activity

Embodied In The Establishment

Clause, And

The Lemon Test, As A “Fail

Workable And Dynar

Predominant Purpose For Posting

Commandments Was

II. In Van Orden and McCreary The

The Ten

The

Religious, Thus Vi

Clause

The

Establishment

The Primary Purpose Was

C. The Content, Context, And

History Of The Displays In

McCreary Clearly Show That

The Government’s Purported

Purpose Was A Sham And That

The Primary Purpose Was

ites diicaiieipaniailiiiabbiisemnenmtennesatemmesnees

D. Respondents Have Failed To

Exert Even A Mild Effort To

Educate Citizens About The Ten

Commandments As The

“Foundation of American Law

And Government,” Or The

“Moral Background Of The

Declaration Of Independence

And The Foundation Of Our

Legal Tradition,” Showing

These Purported Secular

PURPOSES TO BS A SRA .....ccccececcscccecesccsccesess

E. The Purported “Historical”

Purposes At Issue Are Difficult

Or Impossible To Effectuate

And Should Not Be Given

Approval By This Court................:ccccccseeeeeees

Ill. The Posting Of The Ten

Commandments On Public Property

In McCreary and Van Orden

Constitutes Government

Endorsement Of Religion Because

The Effect Of The Government

Action Advances Religion, And Ar.

ill

Objective Observer Would Believe

That The Government Has Endorsed

Sat onisiidncentcisenssensesniisiitetntapenienseddiennsnnceserecesensees 19

A. A Reasonable Viewer Would

Perceive The Display Of The

Ten Commandments As A State

Advancement And Endorsement

Of Religion Favoring The

Jewish And Christian Faiths

And Their Display Therefore

Has The Primary Effect Of

Advancing Religion. ..............sssssscsssssseeeees .19

B. Surrounding The Ten

Commandment Displays With

Secular Objects Does Not

Neutralize The Religious Impact

Of The Ten Commandments,

But It Does Convey The

Message That Christian And

Jewish Religious Messages

Have A Community Value

Equal To Civic And Patriotic

Messages, And That The

Government Endorses Those

DFE i cccctcsnsenccccnsseccsscssvesennevenees 20

C. The Fact That The Ten

Commandments Were Privately

Funded Does Not Render Them

Secular Or Neutralize The

Government Advancement Of

D. Posting The Ten

Commandments On Public

CONCLUSION

Grounds Constitutes

Government Endorsement Of

Certain Religious Sects To The

Exclusion Of Religious

Minorities And Nontheists...................

Public Posting Of Any One

Version Of The Ten

Commandments Endorses

Certain Religious Sects To The

Exclusion Of Other Religions

That Rely On Materially

Different Versions Of The Ten

TRL TE

SEER EEE EEE EEEEEEEEEEEEEEEEEEEEEE EEE

TABLE OF AUTHORITIES

CASES

ACLU of Ky. v. McCreary County,

Ky., 354 F.3d 438 (6th Cir. 2003) .....13, 14, 15, 16, 17, 23

ACLU of Ky. v. Pulaski County, Ky.,

96 F. Supp. 2d 691 (E.D. Ky.

Adland v. Russ, 107 F. Supp. 2d 782

SELEY EI, SEE iesinsitedipnsienttiienininididieteapntmnianmctionedelnii

Books v. City of Elkhart, 235 F.3d

292 (7th Cir. 2000) ........sscccccssssecesscssseesessenees 11, 20, 21, 22

Capital Square Review and Advisory —

Bd. v. Pinette, 515 U.S. 753

._ ied aaiiienish bhtnietieiintiisbiiieaatinntitnacnuiastanisiiciinacssnindeciaiiinain 20

Comm. For Pub. Educ. & Religious

Liberty v. Regan, 444 U.S. 646

CITI inceriinitisneieinbsitunieinvihansasdeniaccnmecsebantibenssiaetnpsiiiinbiita 10

Corp. of the Presiding Bishop of the

Church of Jesus Christ of Latter-

Day Saints v. Amos, 483 U.S. 327

COI sitnecontcdcinnciiniditnsaneaniaitniianbesathucinpeiintanaiapenesininiiiaist 10

County of Allegheny v. ACLU

Greater Pittsburgh Chapter, 492

Fae Ce ciicetitneniennsinimanin 8, 10, 12, 20, 24, 25

Edwards v. Aguillard, 482 U.S. 578

CED itscnsinsnaicioiedainienininnabiiiuiinunisinmmnbanibnn 10, 12, 14

Gonzales v. North Tp. of Lake

County, Ind., 4 F.3d 1412 (7th Cir.

Sis sscindoesiesiinicinacltaslcceiaiindinaneiantaniahsesbaiibssbuedibeiakaiaibieuaiibieiaenis 11

Harris v. City of Zion, 927 F.2d 1401

Sr anna: MUNTITIT ichicoiictesllaanhcnideescielihidinaihdesdeinimntaienialatabdeabie ein 11

Harvey v. Cobb County, 811 F. Supp.

ee hy Bee cieciisciiniinsctésanstieninisendainniinananiuaiiieiin 26

Lamb’s Chapel v. Ctr. Moriches Sch.

ig Se TIT sensiipiscncinsasiccsnitnsiimniipnmneansaigiel 10

Larkin v. Grendel’s Den, 459 U.S.

ee icinsicnlensteheaisidnecsiniituiesiinnsihempmunnipusspenpicaiinnadeincipaiiia 12

Lee v. Weisman, 505 U.S. 577 (1992)............cescccceceeeeees 10, 23

Lemon v. Kurtzman, 403 U.S. 602

ST sciesiivieaesccitaniadidnieapnnitnssnenieintanenremitencitisnineninnidil 8, 19

Lynch v. Donnelly, 465 U.S. 668

STI cicusetnseietiniaasiatinieinisieninibilidtinnemenmngemmnmeddinnnibnnd 10, 24

McCreary County I, 96 F.Supp.2d

Se ee HI ee asntiideniticsincnieinnecissncenintinnbinnanedinesniauiiiinii 13

McGowan v. Maryland, 366 U.S.

EE ciccitaseiieniinicaiciiciaentibiiannineaianantnpunibticiiiaiiianei 18

Santa Fe Indep. Sch. Dist. v. Doe,

a s tetntneitertinninnmnimannannen 10, 11

School Dist. of Abington Tp., Pa. v.

Schempp, 374 U.S. DVS (19G3).....cccecccccsocesseesseeesers 12, 14

Stone v. Graham, 449 U.S. 39 (1980)10, 12, 14, 15, 23, 24, 26

Vii

Van Orden v. Perry, 351 F.3d 173

aes I Ciietetesiertisitiinsiniianiidatseeniiatuaies 11, 12, 13, 21, 22

Wallace v. Jaffree, 472 U.S. 38 a

PUTT sesncsitasleniuiiecslenuiiiesnsiisaeiedbatisidinineiiiiidiia 10, 11, 14, 20

Zelman v. Simmons-Harris, 536 U.S.

SEE AS er Nao Sta Rh ee Mea PN Te OTM Mears ST 10

OTHER AUTHORITIES

Owen Weatherly, The Ten

Commandments in Modern

| RT OE 26

Steven K. Green, “The Fount of

Everything Just and Right? The

Ten Commandments as a Source

of American Law,” 14 J.L. &

Re Bee CE cicccceenscicscscsnntewsiestincnnininiatdnnisies 17

Steven Lubet, The Ten

Commandments in Alabama, 15

I a 7

The Ten Commandments in the

Quran,

www.submission.org/quran/ten.ht

Ee is Se ctitenciicniteinstncnciciccintniatiina 25

- 1

INTEREST OF AMICI CURIAE!

The American Humanist Association is the oldest and

largest humanist organization in the nation, dedicated to

ensuring a voice for those with a positive, nontheistic

outlook. Humanism is a progressive philosophy of life that,

without supernaturalism, affirms the ability and

responsibility of human beings to lead ethical lives of

personal fulfillment that aspire to the greater good of

humanity. The mission of the AHA is to promote the spread

of humanism, raise public awareness and acceptance of

humanism, and encourage the continued refinement of the

humanist philosophy.

The American Humanist Association provides a

unique viewpoint concerning the endorsement involved in

the public posting of the Ten Commandments as well as the

history of religious freedom in the United States because it

represents a unique worldview that is without theism, holy

scriptures, or absolute “Commandments.”

The Association of Humanistic Rabbis is the national

professional organization of ordained rabbis serving

congregations and other organizations within the humanistic

Jewish movement.

The American Ethical Union is the federation of

Ethical societies in the United States which together

constitute the religious fellowship sometimes referred to as

the “Ethical Culture Movement.” The Ethical Culture

movement is more than 128 years old with thousands of

‘The AHA files this brief with the consent of all parties. The letters

granting consent are being filed concurrently. Counsel for a party did not

author this brief in whole or in part. No person or entity, other than

Amici curiae, their members, or their counsel, made a monetary

contribution specifically for the preparation or submission of this brief.

members nationwide. Internationally, the American Ethical

Union is a founding member of the International Humanist

and Ethical Union and is recognized by the United Nations

as a non-governmental organization.

Atheist Alliance International is an organization of

independent religion-free groups and individuals in the

United States and around the world. Its primary goals are to

help democratic, atheistic societies become established and

work in coalition with like-minded groups to advance

rational thinking through educational processes. Through the

Alliance, members share information and cooperate in

activities with a national or international scope.

The Covenant of Unitarian Universalist Pagans is an

independent affiliate of the Unitarian Universalist

Association created to meet the needs of Pagan-identified

Unitarian Universalists. CUUPS is dedicated to educating

people about Paganism, promoting interfaith dialogue,

developing Pagan liturgies and instructional materials, and

fostering healing relationships with mother the Earth and all

her children.

Equal Partners in Faith is a multi-racial national

network of religious leaders and people of faith committed to

equality and diversity. Its diverse faith traditions and shared

religious values lead its members to affirm and defend the

equality of all people, regardless of religion, race, ability,

gender, sexual crientation or gender identity. As people of

faith, its members actively oppose the manipulation of

religion to promote inequality and exclusion.

The Humanist Society is a nonprofit, religious

organization offering humanism as a personal, family, and

community lifestyle. It certifies individuals in communities

throughout the United States to provide ceremonial

observances of the significant occasions of life. Founded by

former Quakers in 1939, the Humanist Society trains and

ordains its Own ministry, who upon ordination are then

accorded the same rights and privileges granted by law to the

priests, ministers, and rabbis of traditional theistic religions.

The Humanist Institute educates _leaders,

spokespersons, and advocates to benefit all elements of the

Humanist movement in a three-year postgraduate certificate

program. It also serves as a think tank to explore Humanism

and its values in its present form and future evolution.

The HUUmanists are an independent affiliate of the

Unitarian Universalist Association. Within this context

HUUmanists practice, promote, enhance, and enjoy

Humanism; provide a continental organization for humanists;

and defend and protect humanism and freedom of thought.

HUUmanists achieve these goals by arranging programs,

forums, and lectures; publishing humanist writing to give

voice to humanist values; encouraging the establishment of

local humanist groups, and maintaining a humanist presence

on the Internet. Founded in 1962 the HUUmanists’ primary

publications are the semi-annual journal Religious

Humanism and the quarterly newsletter HUUmanists News.

The Institute for Humanist Studies is a think tank

based in Albany, New York, whose mission is to promote

greater public awareness, understanding, and support for

humanism. The Institute specializes in pioneering new

technology for the advancement of humanism and also

engages in grassroots and legislative advocacy in order to

further the rights and interests of the non-religious. Founded

in 1999, IHS provides accessible and authoritative

information about humanism to academia, the media, and the

general public, while providing financial grants to other non-

religious groups in its effort to bring the humanist movement

into a more cooperative relationship.

The International Humanist and Ethical Union is the

world federation of humanist organizations. It is the sole

world umbrella organization embracing humanist, atheist,

rationalist, secularist, skeptic, laique, ethical cultural,

freethought, and similar organizations worldwide. The IHEU

has specialist consultative status at the United Nations in

New York, Geneva and Vienna; general consultative status

with the Council of Europe; and maintains operational

relations with United Nations Educational, Scientific, and

Cultural Organization in Paris.

The Internet Infidels run the Secular Web

(www.infidels.org), the largest and most viewed website

relating to atheism, humanism, freethought, and a scholarly

critique of religion.

The National Center for Science Education is a

nonprofit membership organization that supports the

teaching of evolution in the public schools and opposes the

presentation of religious views (such as creationism) in the

science classroom. ~

The Secular Coalition for America’s mission is to

increase the visibility and respectability of nontheistic

viewpoints within the United States and to protect and

strengthen secular government as the best guarantee of

freedom for all. Its members are national atheist, freethought,

humanist, and secular organizations committed to

cooperative action in areas of mutual interest and concern.

The Coalition promotes liberties of conscience for the

approximately thirty million American citizens who hold

nontheistic worldviews.

The Skeptics Society is a nonprofit organization

specializing in science education and research through a

monthly science lecture series at the California Institute of

Technology, the publication of Skeptic magazine, the

publication of Jr. Skeptic magazine for students, the

publication of the Baloney Detection Kit for teachers, the

publication of the Baloney Detection Books for students,

research on belief systems and the influence of culture and

politics on science and science education, and the promotion

of science and critical thinking.

The Society for Humanistic Judaism is the central

body of the national humanistic Jewish movement. The-

Society's mission is to mobilize people to celebrate Jewish

identity and culture consistent with a humanistic philosophy

of life. The Society assists in organizing and supporting

congregations and in providing a voice for its members.

The Unitarian Universalist Association is a religious

association of more than 1,000 congregations in the United

States and North America. Through its democratic process,

the Association adopts resolutions consistent with its

fundamental principles and purposes. In particular, the

Association has adopted numerous resolutions affirming the

principles of separation of church and state and personal

religious freedom.

Amici file this brief with the consent of all parties. The letters

granting consent are enclosed herewith.

SUMMARY OF ARGUMENT

The Lemon test is a sensible reflection of the values

embodied in the Establishment Clause and remains an

eminently workable and dynamic model to assess the

constitutionality of government activity. Just as _ the

Establishment Clause itself embodies multiple values, so

must the tests that this Court employs to decide acceptable

Constitutional parameters. Because of our unique national

history, it is now widely accepted that our government

cannot legislate in a manner that endorses one religion over

others, or religion generally. It is equally clear that our

system of government is not designed to undertake actions,

the principal purpose or effect of which is to advance

religion, and that our government must not allow itself to

become excessively entangled with religion or religious

matters. As difficult as it may be to navigate the challenges

presented when our collective civic and religious values

conflict, it is imperative that we respect the constitutional

values that give meaning to the Establishment Clause. Those

values are adequately represented in the three-pronged

~ Lemon test as it has evolved and been refined through this

Court’s decisions.

The Ten Commandment displays at issue in

McCreary and Van Orden violate the Establishment Clause

by failing to satisfy one or both of the religious purpose and

effects tests set forth in Lemon. The “plainly religious”

nature of the Ten Commandments justifiably elevates courts’

skepticism of proffered legislative purposes for posting them,

and this Court is also correct to examine the context, content,

and history of Ten Commandment displays in order to

decipher true legislative purposes. The nature of the analysis

required under the Establishment Clause mandates this

comprehensive examination, and early indications of

religious or secular purposes clearly and importantly assist

the courts in determining whether particular legislative

_actions are wholly, partly or predominantly secular or

religious.

The purported purposes for the displays at issue in

McCreary, while perhaps appearing secular in their final

version, are nevertheless predominantly religious. In

McCreary this is exacerbated by the clear religious purpose

of the original and second display efforts, and by the

superficial and misguided attempt to characterize the

historical contributions of the Ten Commandments to our

nation’s legal system. In Van Orden the purported purpose

cannot be characterized as “bona fide, legitimate, and not a

mere sham” because of the plainly religious nature, of the

Ten Commandments monument and the absence of a logical

connection between the monument’s display and the

purported purpose.

The displays at issue in McCreary and Van Orden

violate the “effects” prong of the Lemon test. When

employing the “objective observer” standard, it is clear that

the primary effect of the displays is to advance religion,

specifically Christianity and Judiasm. It is also clear that

surrounding the Ten Commandments with secular objects

communicates government endorsement of religion,

especially when, as is the case here, there is no effort to

explain the historical, legal or cultural relevance of the Ten

Commandments to the secular objects. The display of any

version” of the Decalogue on public property under the

circumstances presented in these cases has the clearly

discernable effect of communicating government

endorsement of religion (specifically monotheism). These

displays also violate the “coe-cion” test that this Court

employs in Establishment cases.

? There are at least five distinctive versions of the Decalogue. This is

important because the “deep theological disputes” that account for the

different versions wigger further Establishment Clause infractions when

one version is chosen to the exclusion of the others. See Steven Lubet,

The Ten Commandments in Alabama, 15 Const. Comment. 471, 478

(1998) (concluding that “it takes naiveté ... to believe that a single

rendition of the Ten Commandments could be considered universal and

nonsectarian).

ARGUMENT

Under Lemon v. Kurtzman And Our Establishment

Clause Jurisprudence, This Court Should Affirm The

Sixth Circuit’s Decision In ACLU of Ky. v. McCreary

County, Ky. And Should Reverse The Fifth Circuit’s

Decision In Van Orden v. Perry Because None Of The Ten

Commandment Displays At Issue Advance From A

Legitimate, Bona Fide, Secular Purpose, And All Of

Them Have The Effect Of Endorsing Religion. —

1. The Lemon Test, As A “Fail One, Fail All’ Three-

Prong Test, Is A Sensible Reflection Of The

Values Embodied In The Establishment Clause,

And Remains An Eminently Workable And

Dynamic Model To Assess The Constitutionality

Of Government Activity.

The Establishment Clause of the First Amendment

provides that “Congress shall make no law respecting an

establishment of religion.” U.S. Const., amend. I. At the

heart of the Establishment Clause is the idea that, at a

minimum, a state or federal government cannot establish or

endorse religious belief or activity or engage in activity the

principal effect of which is to endorse or advance religion.

See County of Allegheny v. ACLU Greater Pittsburgh

Chapter, 492 U.S. 573, 593-94 (1989). “The Establishment

Clause, at the very least, prohibits governments from

appearing to take a position on questions of religious beliefs

or from making adherence to a religion relevant in any way

to a person’s standing in the political community.” /d.

In the case of Lemon v. Kurtzman, 403 U.S. 602

(1971), this Court established a three-prong test to assess

whether government activity is impermissible under the

Establishment Clause. Under the Lemon test, as originally

formulated, reviewing courts are required to consider

whether: (1) the government activity in question has a

secular purpose, (2) whether the activity’s primary effect

advances or inhibits religion, and (3) whether the

government activity fosters an excessive entanglement with

religion. Lemon, at 612-13. This Court has used the Lemon

test since the test’s inception as a framework and guide for ~

analysis on the constitutionality of government activity. This

continued use of Lemon reinforces the underlying values of

the Establishment Clause: that the government should not be

acting with religious motivations, that its actions should not

have the effect of advancing religion, and that it should not

meddle or become entangled in religious affairs.

Although not perfect, the structure and approach of

the Lemon test is a “common sense” methodology and

remains the best tool for sorting through the inherently

conflicting values in Establishment Clause cases. In any

Establishment Clause case, a reviewing court is required to

undertake the difficult task of determining where the line

should be drawn between permissible First Amendment

speech and/or activities covered by the Free Exercise Clause

and impermissible government endorsement of religious

activity under the Establishment Clause. The Establishment

Clause provides very little guidance as to how this line

should be drawn, but it does inspire the three necessary

parameters to make this determination: (1) purpose, (2)

effect, and (3) entanglement.

The Lemon test provides the best way for a court to

go about making this decision, and it has been effective

precisely because it forces a reviewing court to assess the

constitutionality of legislative motivations and the results of

their legislation, while continually respecting the maxim that

the government should not involve itself in religious affairs.

In endeavoring to adhere to the mandates of the

Establishment Clause, it was both necessary and helpful for

the Court to create the three different methods of review set

forth in Lemon.

For thirty-three years this Court has continued to use

the Lemon test as the paramount guiding framework to

determine whether the government’s conduct is

constitutional under the Establishment Clause.’ The refining

of the Lemon test over the years is proof that it is an

eminently workable model to both assess_ the

constitutionality of government conduct and foster an

organic dialogue about the underlying social, religious, and

constitutional values at play in Establishment Clause cases.

Indeed, the adoption of the reasonable observer* standard in

the endorsemenveffects analysis illustrates the constantly

evolving nature of our Establishment Clause jurisprudence

and the flexible nature of the Lemon doctrine. i

Il. In Van Orden and McCreary The Predominant

Purpose For Posting The Ten Commandments

Was Religious, Thus Violating The Establishment

Clause.

> See, e.g. Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Santa Fe"

Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lamb’s Chapel v. Ctr.

Moriches Sch. Dist., 508 U.S. 384 (1993); Lee v. Weisman, 505 U.S. 577

(1992); Allegheny, 492 U.S. 573; Edwards v. Aguillard, 482 U.S. 578

(1987); Corp. of the Presiding Bishop of the Church of Jesus Christ of

Latter-Day Saints v. Amos, 483 U.S. 327 (1987); Wallace v. Jaffree, 472

U.S. 38 (1985); Lynch v. Donnelly, 465 U.S. 668 (1984); Stone v.

Graham, 449 U.S. 39 (1980); Comm. For Pub. Educ. & Religious

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

* See Lynch, 465 U.S. at 690 (O’Connor, J., concurring); Aguillard, 482

U.S. 578; Allegheny, 492 U.S. 573.

A. The Court Must Examine The Content,

Context, And History Of The Ten

Commandments Displays In Order To

Distinguish Sham Secular Purposes From

Sincere Ones.

The Court’s analysis of Appellants’ actual purpose

for posting the Decalogue must examine the content, context,

and evolution of the displays at issue. See Santa Fe Indep.

Sch. Dist., 530 U.S. at 308 (stating that courts must examine

the circumstances surrounding the governmental enactment

and the conduct of the [appellants] throughout the dispute to

determine primary purpose). This is because it is the “duty of

the courts to ‘distinguish a sham secular purpose from a

sincere one.” Jd. (quoting Wallace, 472 U.S. at 75 at 75).

This comprehensive analysis must include an

examination of the legislature’s “original purpose” for

erecting religious displays because it is the only way to

effectively perform the purpose analysis under Lemon. See

Books v. City of Elkhart, 235 F.3d 292, 295, 303-304 (7th

Cir. 2000); Gonzales v. North Tp. of Lake County, Ind., 4

F.3d 1412, 1420-21 (7th Cir. 1993); Harris v. City of Zion,

927 F.2d 1401, 1413-14 (7th Cir. 2001). The evolution of the

actual display is helpful in distinguishing sham secular

purposes from actual ones. This is important because, as the

situation in McCreary demonstrates, it is not difficult to

concoct a secular purpose in order to oppose removal of a

religious display. This capacious examination is also

necessary in situations like in Van Orden, where the purpose

for erecting a specifically religious monument must be

evaluated in the context of the conduct and activity occurring

after a proposed secular purpose is offered. See Van Orden v.

Perry, 351 F.3d 173 (Sth Cir. 2003).

B. The Content, Context, And History Of The

Monument In Van Orden Clearly Shows

That The Government’s Purported

Purpose Was A Sham And That The

Primary Purpose Was Religious.

Because the purpose prong “‘is not satisfied ... by the

mere existence of some secular purpose, however dominated

by religious purposes,” Aguillard, 482 U.S. at 592-94, it is

reasonable that the “plainly religious” nature of the Ten

Commandments would render their posting on public

property facially suspect. Indeed, the specifically Christian

and Jewish precepts, “I AM the LORD thy God,” “Thou

shalt have no other gods before me,” “Thou shalt not make

to thyself any graven images, and “Thou shalt not take the

Name of the Lord thy God in vain,” tend toward the

reasonable inference that the displaying government has a

primarily religious (specifically monotheistic) purpose for

displaying and maintaining the monument. See id. at 585

(“This intention may be evidenced by promotion of religion

in general ... or by advancement of a particular religious

belief.”) (citing Stone, 449 U.S. 39).

Although the purported purpose in Van Orden was to

“recognize and commend a private organization for its

efforts to reduce juvenile delinquency,” Van Orden, 351 F.3d

at 178, the State cannot employ a religious means to serve

otherwise secular interests. See Larkin v. Grendel’s Den, 459

U.S. 116 (1982); School Dist. of Abington Tp., Pa. v.

Schempp, 374 U.S. 203, 265 (1963) (Brennan, J., concurring).

Whenever a government entity can achieve a secular end

through either secular or religious methods, and it chooses

the religious method to accomplish its goals, its motivations

are suspect. See Allegheny, 492 U.S. at 618 (Blackmun, J.,

concurring). Furthermore, in 1993, several years after the

purported secular purpose was offered, the monument was

re-positioned “on the direct line between the legislative

chambers, the executive office of the governor, and the

Supreme Court building ... to reflect the role of the

Commandments in the making of law.” Van Orden, 351 F.3d

at 181 (emphasis added). This is analytically identical to the

purposes rejected by the 6th Circuit in McCreary and the

Supreme Court in Stone. Furthermore, in this situation it is

simply illogical to grant that efforts to honor a private

organization could or should justify the posting and

maintaining of a religious monument in a manner that, as

will be addressed below, constitutes a clear endorsement of

religion. <i hes

C. The Content, Context, And History Of The

Displays In McCreary Clearly Show That

The Government’s Purported Purpose

Was A Sham And That The Primary

Purpose Was Religious.

In McCreary, the first display only contained the Ten

Commandments, the second display supplemented the first

with textual excerpts celebrating religion, and the third

display simply surrounded the Ten Commandments with

new secular and patriotic items. ACLU of Ky. v. McCreary

County, Ky., 354 F.3d 438, 440-444 (6th Cir. 2003)

(“McCreary County IT’). At the beginning of this process the

Kentucky officials (specifically Mr. Greene) professed his

religious reasons for erecting the displays before conceding

that the purpose was to “demonstrate America’s Christian

heritage,” McCreary County I, 96 F.Supp.2d 667, 674 (E.D.

Ky. 2000). The purported purpose was again amended “to

demonstrate that the Ten Commandments were part of the

foundation of American law and government ... [and] [to

include the Ten Commandments] as part of the display for

their significance in providing ‘the moral background of the

Declaration of Independence and the foundation of our legal

tradition.”” McCreary County II, 354 F.3d at 446-47.

Given the changing nature of the displays and

purported purposes, it is clear that the only consistent

motivation for the appellants was an effort to display the Ten

Commandments on public property. Simply put, the main

secular purpose that was proffered during the most recent ~

stages of litigation was not present when the first and second

displays were erected. It is difficult to find a better example

of a “sham” purpose, and this Court should not give effect to

Appellant’s ad hoc efforts to cloak its predominantly

religious motivations. See Stone, 449 U.S. 1104 (rejecting a

conceptually identical sham purpose).

Just as the religious nature of the Ten

Commandments has not changed since this court’s decision

in Stone, neither have the religious motivations of the

Kentucky authorities. In McCreary, as in Stone, the “pre-

eminent purpose” for posting the Ten Commandments was

“plainly religious.” Stone, 449 U.S. 39, 41 (1980). Where a

“government intention to promote religion is clear,”

Aguillard, 482 U.S. at 585, this Court has consistently found

the government action to violate the Establishment Clause

despite government assertions of sincere nonreligious

purposes. See Stone, 449 U.S. 39; Aguillard, 482 U.S. 578;

Wallace, 472 U.S. 38; Schempp, 374 U.S. 203. The “sham”

nature of Appellants proffered purpose is further illustrated

by their utter “fail{ure] to integrate the Ten Commandments

with a secular subject matter.” McCreary County II, 354

F.3d at 453-54.

D. Respondents Have Failed To Exert Even A

Mild Effort To Educate Citizens About

The Ten Commandments As The

“Foundation of American Law And

Government,” Or The “Moral Background

Of The Declaration Of Independence And

The Foundation Of Our Legal Tradition,”

Showing These Purported Secular

Purposes To Be A Sham.

The most recent set of purposes advanced by

Appellants in McCreary to justify the display of the Ten

Commandments are sham purposes, partly because the

current displays cannot reasonably effectuate their own

purported purposes and partly because it does not appear that

they were even designed to do so. These purposes are “to

demonstrate that the Ten Commandments are part of the

foundation of American Law and Government ... [and] their

significance in providing the ‘moral background of the

Declaration of Independence and the foundation of our legal

tradition;’”” and “to educate the citizens of the county

regarding some of the documents that played a significant

role in the foundation of our system of law and government.”

McCreary County II, 354 F.3d at 446.

In light of the lack of evidence supporting the

historical assertions of Appellant’s proffered purposes and

the absence of a comprehensive explanation that is required

for the display to qualify as “an appropriate study of history,

civilization, ethics, comparative religion, or the like” under

Stone, 449 U.S. at 42, it is remarkable that the Appellants

can actually suggest that their Ten Commandment displays

were erected for remotely non-religious reasons. It would be

extraordinarily difficult to accomplish these goals through

even the most extensive exhibit of the Ten Commandments,

let alone the displays erected by Appellants.

The displays in both the schools and the courthouses

utterly fail to demonstrate even Appellants’ own alleged

connection between the Ten Commandments and American

law and government. Regarding the school installations, the

prefatory text contains no factual information whatsoever.

Instead it provides a brief resuscitation of the School Board’s

opinion that the documents in the displays “have had

particular historical significance in the development of this

country.” McCreary County II, 354 F.3d at 450. Perhaps the

only thing that is more vague and unsupported than this

proffered opinion is the purpose it allegedly supports.

The text accompanying the courthouse display is

equally conclusory. As support for the claim that the Ten

Commandments “profoundly influenced . . . the formation of

our country,” it offers as “clear” evidence the Declaration of

Independence’s reference to a “Creator,” Jd. at 451, even

though the term “Creator” is nowhere in the courthouse

version 0: the Ten Commandments, see id. at 443, n. 2. The

text then concludes with the overbroad and unsupported

contention that “[t]he Ten Commandments provide the moral

background of the Declaration of Independence and the

foundation of our legal tradition.” Jd. at 446-47. This bald

assertion was also devoid of any historical proof,

substantiated commentary or plausible support. It is difficult

to imagine a legitimate, bona fide purpose being so far off

_the mark from its proponent’s efforts to effectuate it, but not

as difficult as it would be (assuming they wanted to) for

them to actually accomplish it.

E. The Purported “Historical” Purposes At

Issue Are Difficult Or Impossible To

Effectuate And Should Not Be Given

Approval By This Court.

Appellants would have to sacrifice objectivity and

intellectual honesty in order to demonstrate that the Ten

Commandments are the moral background of the Declaration

of Independence and the foundation of our law and

government. The most fundamental expressions of our

system of government - the Declaration of Independence,

the Constitution, and the Bill of Rights — have explicitly

rejected the religious ideology. propounded in the Ten

Commandments. Appellants’ stated purposes are a sham

because they are simply untenable assertions the sole

purpose of which is to provide secular cover for the State to

advance a particular religious viewpoint.

The claim that the Declaration of Independence was

created against the “moral background” of the Ten

Commandments is simply untrue. Thomas Jefferson, the

Declaration’s author, rejected claims of the purported

influence of Christianity on the common law.° In addition,

the references in the Declaration to “Creator” and “God” did

not refer to the God who gave Moses the Ten

Commandments, but rather the “watchmaker” God of

eighteenth century deism.° The same man who penned the

immortal, self-evident truth that all men are created equal,

surely did not believe in the God of the courthouse

Commandments, who warns, “(Fjor I the LORD thy God am

a jealous God, visiting the iniquity of the fathers upon the

children unto the third and fourth generation of them that

hate me.” McCreary County II, 354 F.3d 443, n. 2.

* Steven K. Green, “The Fount of Everything Just and Right? The Ten

Commandments as a Source of American Law,” 14 J.L. & Religion 525,

547 (1999-2000) (quoting January 24, 1814, letter from Jefferson to

Adams stating that, through “judicial forgery, the Bible, Testament, and

all (Church doctrine was] ingulphed into the common law without citing

any authority,” in Lester J. Cappon, ed., The Adams-Jefferson Letters

421-25 (UNC Press, 1959)).

® McCreary County Il, 354 F.3d at 452-53 (citing Allen Jayne,

Jefferson's Declaration of Independence: Origins, Philosophy and

Theology 24 (1998)). It is worth noting that Jefferson's rough draft, in

which the capitalization was rather more standard than in the final

version, refers to a lowercase “nature’s god” and contains no reference to

a “Creator.”

The Constitution and the Bill of Rights reject the

encroachment of religious influence even more strongly than

the Declaration of Independence does. Neither mentions God

at all, let alone refers to the Ten Commandments. Indeed, the

first four commandments plainly contradict the First

Amendment. Prohibitions against idolatry and worshipping

other gods would violate the Free Exercise Clause, penalties

for blasphemy would violate the Free Speech Clause and a

mandate to keep the Sabbath holy would violate the

Establishment Clause. The remaining six commandments are

also not mentioned.’ In fact, the only other discussion of

religion is in Art. VI, which states that “no religious Test

shall ever be required as a Qualification to any Office or

public Trust uncer the United States.” The Constitution’s

own text, therefore, defeats the bold historical assertions that

Appellants advance in their purported purposes.

In addition to our nation’s “foundational legal”

documents, state legal systems, dating from the present back

to colonial days, have been overwhelmingly secular. While

Puritan New England did experiment with codes based on

the Decalogue, by the early 1700s the colonies abandoned

this approach for the English common law, which was not

based on the Bible. Green, supra note 5, at 542-43. Professor

Green’s extensive historical inquiry led him to conciude that

“(t]he historical record fails to support claims of a direct

relationship between the law and the Ten Commandments.”

Id. at 558.

The texts of the most basic American documents and

the history of American legal theory refute Appellants’

’ The “Sundays excepted” clause in Art. I, Sec. 7, { 2 has been grounds

for debate, but this Court has previously explored the development of

these laws, finding that their secular emphasis was predominant as early

as the mid-1770s. McGowan v. Maryland, 366 U.S. 420, 433-37 (1961).

claims that the Ten Commandments provided the “moral

background” for the Declaration of Independence and the

foundation of our legal system. At best, the Ten

Commandments influenced the founding fathers in their

private lives, which they kept separate from their public

offices Isolated, unsuccessful episodes of experimentation

with biblical law do not show that the Ten Commandments

had any direct or lasting influence on American legal

traditions. Furthermore, Appellants offer no evidence that the

Ten Commandments directly influenced the Declaration of

Independence, as they allege in their purported purposes for

displaying them. This Court should conclude that these are

sham purposes, manufactured to camouflage purely or

predominantly religious purposes because Appellants’ have

neither made an effort to achieve the purposes as stated nor

shown how they could ever possibly do so.

Ill. The Posting Of The Ten Commandments On

Public Property In McCreary and Van Orden

Constitutes Government Endorsement Of

Religion Because The Effect Of The Government

Action Advances Religion, And An Objective

Observer Would Believe That The Government

Has Endorsed Religion.

A. A Reasonable Viewer Would Perceive The

Display Of The Ten Commandments As A

State Advancement And Endorsement Of

Religion Favoring The Jewish And

Christian Faiths And Their Display

Therefore Has The Primary Effect Of

Advancing Religion.

The “effects” prong of the Lemon test asks whether

the government activity’s “principal or primary effect”

advances or inhibits religion. Lemon, 403 U.S. at 612-13.

This has been refined such that the courts ask whether an

“objective observer, acquainted with the text, legislative

history and implementation of the statute, would perceive it

as a state endorsement of [religion].” Wallace, 472 U.S. 38

(O’Connor, J., concurring); Allegheny, 492 U.S. at 593

(showing the majority of the Court’s implicit adoption of the

endorsement test). In shert, the endorsement test looks to

whether the government has conveyed a message that

religion is favored, preferred, or promoted over other beliefs.

In Pinette, this Court recognized that “an unattended

display (and any message it conveys) can naturally be

viewed as belonging to the owner of the land on which it

stands.” Capital Square Review and Advisory Bd. v. Pinette,

515 U.S. 753, 786 (1995) (Souter, J., concurring). Any

reasonable observer would view monuments on the grounds

of the state capital and displays on the courthouse grounds as

public property, or at least endorsed by the government

owner of the property. The objects’ religious character is

equally apparent, especially in the context of Van Orden. See

Books, 235 F.3d at 302 (“Th{e] religious format is enhanced,

not detracted from, by the etchings at the bottom of the tablet

of the Stars of David and the Chi Rho symbol, a distinctive

Christian symbol.”). It would be unreasonable to believe that

the religious items were on the monument without

government permission.

B. Surrounding The Ten Commandment

Displays With Secular Objects Does Not

Neutralize The Religious Impact Of ‘The

Ten Commandments, But It Does Convey

The Message That Christian And Jewish

Religious Messages Have A Community

Value Equal To Civic And Patriotic

Messages, And That The Government

Endorses Those Religious Messages.

In Books, a 7th Circuit case dealing with a display

that was identical to the one at issue in Van Orden, the court

rightly rejected the notion that surrounding the Decalogue

with secular symbols renders it secular. See Books, 235 F.3d

292. Indeed, “the placement of the American Eagle gripping

the national colors at the top of the monument hardly

detracts from the message of endorsement; rather, it

specifically links religion ... and civil government.” Jd. at

307. The reasoning of the 7th Circuit was endorsed by this

Court in its denial of certiorari. Books v. City cf Elkhart, 235

- F.3d 292 (7th Cir. 2000), cert. denied, 532 U.S. 1058 (2001)

(Stevens, J., statement respecting denial of cert.) (stating that

“the reasons why this case is not one that merits certiorari are

explained in detail in Judge Ripple’s thoughtful opinion for

the Court of Appeals.”) The displays at issue in McCreary

and Van Orden are similar in that they also are both

surrounded with secular symbols.® Because of this, it is all

the more important to appreciate the likelihood that the

reasonable observer will interpret the displays as a State

endorsement of religion.

In Van Orden, this likelihood is accelerated by the

nature of the display as a “monument.” Monuments are

generally understood to refer to memorials, records,

testaments, tributes, reminders, etc., and they are generally

erected on public property to honor heroes, soldiers, leaders,

* This similarity is explicitly apparent in the McCreary case, where the

Decalogue is only one of several items in the display, and expressly

relevant in Van Orden, because of the secular engravings on the actual

monument and the secular items displayed in the vicinity of the

monument. See Van Orden, 351 F.3d at 180-81 (relying upon the

Decalogue’s placement on the grounds of a National Historic Landmark

among other secular monuments and memorials to show that a

reasonable observer would not view the display as an endorsement of

religion).

great events, etc. Given the nature of monuments, it is clear

that there is a stark difference between artwork being placed

in a publicly funded art museum’ and a copy of the Ten

Commandments being placed on the grounds of the state

capital or the county courthouse, or in a schoolroom. In Van

Orden the Ten Commandments monument was placed “on

the direct line between the legislative chambers, the

executive office of the governor, and the Supreme Court

building ... to reflect the role of the Commandments in the

making of law.” Van Orden, 351 F.3d at 181. This placement

would further support the reasonable person’s conclusion

_that Texas endorses Judeo-Christian values, just as it would

support the conclusion that the placement of any monument

in such a prominent location indicates that the State

“approved of the display and the full panoply of its religious

content.” See Adland v. Russ, 107 F. Supp. 2d 782, 786 (E.D.

Ky. 2000) (finding that an identical monument placed on the

capital grounds in Kentucky constituted government

endorsement).

Like the monuments in Books and Adland, the one in

Van Orden also clearly mingles religious and secular

symbols without providing any sort of explanation for the

apparent links “between religion ... and civil government.”

See Books, 235 F.3d at 307. Because they “utterly failed] to

integrate the Ten Commandments with a secular subject

matter,” the government actors in McCreary not only failed

to demonstrate a Sona fide secular purpose but they also

* The District Court in Van Orden relied heavily on the facts that the

Texas Capital Grounds are designated as a “National Historic Landmark”

and the curator of the Capital is a “professional museum curator,” in an

attempt to analogize the grounds as a museum-type setting as described

in Allegheny, or the Ten Commandments as a religious painting.

Obviously, it is much more likely that a reasonable viewer would

perceive government endorsement in the case of a religious monument

featured prominently on capital grounds than they would while viewing a

work of art in an art museum.

ensured that their Ten Commandments displays would cause

a reasonable person to believe that they were witnessing a

government endorsement of religion. See McCreary County

II, 354 F.3d at 453-54.

Were Privately Funded Does Not Render

Them Secular Or Neutralize The

Government Advancement Of Religion.

The fact that the Ten Commandments Monument in

Van Orden was not purchased with taxpayer revenue is of no

consequence when it comes to the Establishment Clause.

Stone, 449 U.S. at 42 (holding that the “mere posting of the

copies under the auspices of the legislature provides the

“official support of the State ... Government that the

Establishment Clause prohibits.” This makes sense,

especially because the State of Texas took no steps to keep

from endorsing the monument or to try to neutralize its

plainly religious effect.

D. Posting The Ten Commandments On

Public Grounds Constitutes Government

Endorsement Of Certain Religious Sects

To The Exclusion Of Religious Minorities

And Nontheists.

The first line on the displays, “I AM the Lord Thy

God,” illustrates both the monotheistic and the sectarian

character of the displays. By explicitly asserting the

existence of a God, the Decalogue itself endorses theistic

sects over nontheistic sects, such as Buddhism, as well as

over the beliefs of agnostic and atheistic nontheists. This

Court has acknowledged, and should continue to appreciate,

the prominent existence of nontheists within the American .

religrous landscape. See e.g. Lee, 505 U.S. at 617 (1992)

(Souter, J., concurring). Also, by using the singular “I AM,”

the Decalogue endorses monotheistic religious sects over

polytheistic sects, such as Hinduism. Similarly, by referring

to a masculine God over a feminine Goddess, the Decalogue

represents a unique conception of the ultimate nature of the

Deity that is not shared by all. The posting of the Ten

Commandment displays in McCreary and Van Orden

therefore impinge upon the respect for religious pluralism

that “is commanded by the Constitution,” Allegheny, 492

U.S. at 610, and could-not be more antithetical to the values

embodied in the Establishment Clause. As this Court stated

in Lynch, “[e}ndorsement sends a message to non-adherents

that they are outsiders, not full members of the political

community and an accompanying message to adherents that

they are insiders, favored members of the political

community.” 465 U.S. at 688.

E. Public Posting Of Any One Version Of The

Ten Commandments Endorses Certain

Religious Sects To The Exclusion Of Other

Religions That Rely On Materially

Different Versions Of The Ten

Commandments.

Over twenty years ago this Court stated that the Ten

Commandments are “undeniably a sacred text in the Jewish

and Christian faiths and no recitation of a supposed secular

purpose can blind [the Court] to that fact.” Stone, 449 U.S. at

41. This is significant because it acknowledges that the Ten

Commandments (and monuments or displays like those at

issue in these cases) exist as an object of faith for some

people but not for others. However, it is also important not to

overlook the discriminatory impact that this form of

government endorsement has on “believers.” As the lower

court in McCreary observed, the posting of one version of

the Ten Commandments to the exclusion of others causes the

“display to run further afoul of the Establishment Clause

because it infringes upon the ‘sectarian differences among

various Christian denominations [that] were central to the

origins of our Republic.” ACLU of Ky. v. Pulaski County, —

Ky., 96 F. Supp. 2d 691, 701, n. 9 (E.D. Ky. 2000) (quoting

Allegheny, 492 U.S. at 589).

Because “[t]he simultaneous endorsement of Judiasm

and Christianity is no less constitutionally infirm than the

endorsement of Christianity alone,” this Court has “expressly

required strict scrutiny of practices suggesting a

denominational preference,” Allegheny, 492 U.S. at 608-09,

614-15 (citing Larson v. Valente, 456 U.S. at-246). Both the

nature of the Ten Commandments and the actual displays at

issue in these cases indicate a denominational preference.’°

For example, in Van Orden, the monument on display

presents the Protestant (with portions of the Jewish) version

over the Catholic version. Additionally, to the extent that any

of the Ten Commandments are embodied in the Quran, they

are also not accurately represented in the version chosen on

the Texas monument. See The Ten Commandments in the

Quran, www.submission.org/quran/ten.html (last visited Dec.

2, 2004). eg

In Stone this Court rejected efforts to post the

Decalogue on classroom walls partly because the first

'° The Ten Commandments, as commonly cited, appear twice in the Old

Testament: in Exodus 20:1-17 and Deuteronomy 5:1-21. These two

versions don't match perfectly. Furthermore, the versions of the "Ten

Commandments” as they tend to appear on monuments don't include

everything from these verses but tend to be abbreviated, condensed, or

paraphrased with parts left out. The decision on which parts to include

and which to leave out is necessarily a sectarian (even denominational)

religious one; not all Christians, Jews, and Muslims would necessarily

agree on the details of such abbreviations, condensations, or paraphrases.

“table” of the Ten Commandments solely concerns the

religious duties of monotheistic believers. Stone, 449 U.S. at

41-43. However, it is important to acknowledge that even the

“uncontroversial” phrases in the Decalogue, such as “Thou

Shalt Not Kill,” express an unconstitutional denominational

preference. As the court in Harvey v. Cobb County aptly

noted, “[t]hat is not what the text says in the original Hebrew,

which says “Thou shalt not murder.’” 811 F. Supp. 669, 672

(N.D. Ga. 1993), affd, 15 F.3d 1097 (11th Cir. 1994), cert.

denied, 511 U.S. 1129 (1994). This has important theological

implications because, by illustration, “Thou shalt not kill” is

violated by capital punishment and war. See e.g. Owen

Weatherly, The Ten Commandments in Modern Perspective

(1961) at 92, 97.

In this situation, the decision to post one version of

the Decalogue over others conveys the message from the

State that the Protestant version is “correct” and the Muslim,

Jewish, and Catholic versions are “incorrect.” It is surely

situations like these that were envisioned by the drafters of

the First Amendment. And it is exactly for this reason that

the government should avoid giving its imprimatur to any _

version of the Ten Commandments. Abrogation of this

constitutional limitation could force the courts to have to

decide between competing versions of the Ten

Commandments, which would most certainly tigger

entanglement problems under Lemon.

CONCLUSION

The decision of the Sixth Circuit in McCreary should be

affirmed and the decision of the Fifth Circuit in Van Orden

should be reversed because the Ten Commandment displays

at issue violate the Establishment Clause.

Respectfully submitted,

Elizabeth L. Hileman

Counsel of Record for —

American Humanist Association

7979 Old Georgetown Road

Suite 600

Bethesda, Maryland 20814

301-652-1448

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.