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

Supreme Court brief2005

Ask Donna

What actually matters in this document.

Text

GS)

No. 03-1693

IN THE

Supreme Court of the United States

McCREARY COUNTY, KENTUCKY et ai.,

Petitioners,

Vv.

AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY et ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMERICANS UNITED FOR SEPARATION

OF CHURCH AND STATE, PEOPLE FOR THE

AMERICAN WAY FOUNDATION, AND THE

NATIONAL COUNCIL OF JEWISH WOMEN, INC.

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

AYESHA KHAN WILLIAM M. HOHENGARTEN *

RICHARD B. KATSKEE IAN HEATH GERSHENGORN

ALEX J. LUCHENITSER VICTORIA H. JUEDS

AMERICANS UNITED FOR THOMAS G. PULHAM

SEPARATION OF CHURCH JENNER & BLOCK LLP

AND STATE 601 Thirteenth Street, N.W.

518 C Street, N.E. Washington, DC 20005

Washington, DC 20002 (202) 639-6000

(202) 466-3234

ELLIOT M. MINCBERG

JUDITH E. SCHAEFFER

PEOPLE FOR THE AMERICAN

WAY FOUNDATION

2000 M Street, N.W.

Suite 400

Washington, DC 20036

(202) 467-4999

Counsel for Amici Curiae

January 21, 2005 * Counsel of Record

een enema ANTE Ste a

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

TABLE OF CONTENTS

TTS TTT NT CN OED i

ee Fe iicccsecncniinsecissninnininnsmomnncesnisin ili

Be Ce Fe Ci cccccevccsesccscncsccesescorsenvocsneseesees l

INTRODUCTION AND SUMMARY OF ARGUMENT.....2

EE TERNS Her nT ee ee RS 5

I. Barring Government From Acting With The Actual

Purpose Of Advancing Or Endorsing Religion Is A

Core Function Of The Establishment Clause. .................. 5

A. Under Long-Settled Precedent, Improper

Religious Purpose Is a Sufficient and Independent

Ground for Setting Aside Government Action........... 5

B. Prohibiting Government From Acting With the

Actual Purpose of Advancing or Endorsing

Religion Is Necessary to Safeguard the

Fundamental Establishment Clause Mandate of

Government Neutrality with Respect to Religion. .....9

C. Determining a Government Actor’s Actual

Purpose Is Not Unmanageable But Is Instead a

Core Competence of the Judiciary Exercised in

Many Areas of Constitutional Law. ......................... 11

1. Determining the actual purpose behind an

action is a core competence of the judiciary. .....12

2. Other areas of constitutional law likewise turn

on the actual purpose behind government

RST On 14

D. The Court Should Reject the United States’

Suggestion That It Abandon Inquiry into Actual

Purpose and Look Instead at “Objective Purpose,”

Which as Defined by the United States Is

Synonymous With Effect. ..............ccccccccsossssessesceseeees 16

II. Reviewing Courts Can And Must Look Behind

Pretextual Statements Of Secular Purpose That Seek

To Mask An Impermissible Religious Purpose.............. 21

III. The Establishment Clause Is Not Satisfied By The

Mere Existence Of Some Secular Purpose, No Matter

How Dominated By An Impermissible Religious

PUIPOSE. ...........cscscessssssssseccereseerensessnensescnssrsssssscscncesenenees 25

CORNCLLILIBIOIN § ....cccccccsccssccesccssssssessessecsosesssesessnesnsetesneneenennnen 28

TABLE OF AUTHORITIES

CASES

ACLU v. McCreary County, 145 F. Supp. 2d 845

EEC ae a a 22

ACLU v. McCreary County, 354 F.3d 438 (6th

IITs lalhlicalttesiceenttinniteh dbsedienenensuieeseeseconcens 24

Adarand Construction, Inc. v. Pena, 515 U.S. 200

TTT iAsdiaiiadialiadinsilddipnpdenblidniiadiatdiitesinadecnencsenesueseeseeeee 15

Agostini v. Felton, 521 U.S. 203 (1997)..............cc0000000+ 6,9

Bachus Imports, Ltd. v. Dias, 468 U.S. 263

EEE Le 14

Board of Education of Kiryas Joel Village School

District v. Grumet, 512 U.S. 687 (1994)......... ae 9

Books v. City of Elkhart, 235 F.3d 292 (7th Cir.

2000), cert. denied, 532 U.S. 1058 (2001)......... 22, 23

Bowen v. Kendrick, 487 U.S. 589 (1988)................00000. 26

Church of the Lukumi Babalu Aye v. City of

LE ET | ee 14

City of Cleburne v. Cleburne Living Ctr., 473

tice arnatansentnenstnenecsncee voce 49

City of Richmond v. J.A. Croson Co., 488 U.S.

can iianheieenintieaitbaicineetéededsensenennencenee 15

Committee for Public Education & Religious

Liberty v. Nyquist, 413 U.S. 756 (1973).............:000-+. 9

Corporation of Presiding Bishop of Church of

Jesus Christ of Latter-day Saints v. Amos, 483

a 10

County of Allegheny v. ACLU, 492 U.S. 573

SG cvcscscetntencesniipnsoniieminnseneninaestaiainaininiijianes 6, 7,9, 11

Edwards v. Aguillard, 482 U.S. 578 (1987)...........- passim

Epperson v. State of Arkansas, 393 U.S. 97

CED scsecnccsscncnstsatmatsnenicnmsesiiiniininittinttaenningaetnaee 17

Freethought Society of Greater Philadelphia v.

Chester County, 334 F.3d 247 (3d Cir. 2003)............ 7

Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003),

cert. denied, 540 U.S. 1000 (2003) ........ 13, 19, 20, 21

Hunt v. Washington Apple Advertising

Commission, 432 U.S. 333 (1977) ......c..cccsssceeeeerees 14

Hunter v. Underwood, 471 U.S. 222 (1985)............ 16, 24

Lemon v. Kurtzman, 403 U.S. 602 (1971)........cc.0sceeeeeeee 6

Lynch v. Donnelly, 465 U.S. 668 (1984).............00+. passim

Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003),

cert. denied, -- U.S. --, 124 S. Ct. 1750 (2004)........ 17

Mitchell v. Helms, 530 U.S. 793 (2000)...........:cccececeeeeee 10

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

Ge Be ite etetctcsinertintiniinniitnetinmnnticniennacentnenereens 7

Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274 (1977) ..........000+0 27

Nixon v. Administrator of General Service, 433

a ited tcepertamenisitnieaniniomnegtnainienenese 14

Personnel Administrator v. Feeney, 442 U.S. 256

COD ccicccsssintieneemaneteinentaneieinainninmanieminanemens 15

Price Waterhouse v. Hopkins, 490 U.S. 228

COTE cnccemiuscctiinnenisingeenaniemeppamenninmenemamanets 27

Romer v. Evans, 517 U.S. 620 (1996).............cccseeseeeeeees 15

Rosenberger v. Rector and Visitors of University

of Virginia, 515 U.S. 819 (1995).........ccccccccccseseeseeees 10

Santa Fe Independent School District v. Doe, 530

a I eiieencscesiintencianianiguniionnss 7, 22, 23, 24, 26

School District of Abington Township v.

Schempp, 374 U.S. 203 (1963)..........ccccceceee00e 6, 9, 10

Stone v. Graham, 449 U.S. 39 (1980) .... 20, 22, 24, 25, 26

Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly,

309 F.3d 144 (3d Cir. 2002), cert. denied, 534

RES A Deo Ic Te 7

Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252

Epa iiahinsenctinidicnscietentinietedbiianiaiadasiavistiemmanmbeiia 15, 26, 27

Wallace v. Jaffree, 472 U.S. 38 (1985) ........cccccceeee passim

Washington v. Davis, 426 U.S. 229 (1976)...........0000000+ 15

West Lynn Creamery, Inc. v. Healy, 512 U.S. 186

STRAIT noe eno eT EO 14

Zelman v. Simmons-Harris, 536 U.S. 639 (2002)......6, 27

MISCELLANEOUS

Ashutosh Bhagwat, Purpose Scrutiny in

Constitutional Analysis, 85 Cal. L. Rev. 297

en ee OT 12, 14

Richard H. Fallon, Jr., Implementing the

Constitution, 111 Harv. L. Rev. 56 (1997)....... 8,4, 18

Oliver Wendell Holmes, Jr., The Common Law 3.......... 12

Andrew Koppelman, Secular Purpose, 88 Va. L.

a icdaaitciethnecitesiiitabticiateicntns aad 11

Michael McConnell, Religious Freedom at a

Crossroads, 59 U. Chi. L. Rev. 115 (1992)....... 10, 16

Donald H. Regan, Siamese Essays: (I) CTS Corp.

v. Dynamics Corp. of America and Dormant

Commerce Clause Doctrine; (II)

Extraterritorial State Legislation, 85 Mich. L.

Rev. 1872 (1987) ...ccccccoceccescescoccsccsccevcccosscosensoooseocoses 13

Richard H. Pildes, Avoiding Balancing: The Role

of Exclusionary Reasons in Constitutional

Law, 45 Hastings L.J. 711 (1994) ..........ccccceeeeeeeeeees 13

INTEREST OF AMICI CURIAE'

Americans United for Separation of Church and State is a

75,000-member national, nonsectarian public interest

organization committed to defending religious liberty and the

separation of church and state. Since its founding in 1947,

Americans United has regularly been involved as a party, as

counsel, or as an amicus curiae in leading church-state cases

before this Court and other federal and state courts.

Americans United has long experience litigating challenges

to government displays of religion and, indeed, is currently

serving as counsel to the plaintiffs in several cases in the

lower federal courts that challenge government-sponsored

displays of the Ten Commandments. As an organization

frequently involved in such litigation, as well as in other

categories of cases brought under the Establishment Clause,

Americans United believes that it can offer the Court special

insight into the constitutional issues raised by this case.

People For the American Way Foundation (“PFAWF’) is

a non-profit, non-partisan citizens organization established to

promote and protect civil and constitutional rights. Founded

in 1980 by a group of religious, civic, and educational leaders

devoted to our nation’s heritage of tolerance, pluralism, and

liberty, PFAWF now has more than 600,000 members and

activists nationwide. PFAWF has frequently represented

parties and filed amicus curiae briefs in litigation seeking to

defend religious liberty and the separation of church and

state. PFAWF has joined in filing this amicus brief in order

to help vindicate the important First Amendment principles

at stake in this case, particularly the principles that

' Pursuant to Rule 37.3, the parties have consented to the submission of

this brief. Letters of consent have been filed with the Clerk. No party

authored this brief in whole or in part, and no person or entity, other than

amici curiae, their members, or their counsel, has made a monetary

contribution to the preparation or submission of this brief.

government officials must remain neutral toward religion,

that they cannot act for the purpose of advancing religion,

and that government displays that endorse religion trample

on religious freedom and violate the separation of church and

state.

The National Council of Jewish Women, Inc. (“NCJW”)

is a volunteer organization, inspired by Jewish values, that

works through a program of research, education, advocacy,

and community service to improve the quality of life for

women, children, and families and strives to ensure

individual rights and freedoms for all. Founded in 1893, the

NCJW has 90,000 members, supporters, and volunteers in

over 500 communities nationwide. NCJW joins this brief,

which is consistent with NCJW’s National Principle that

“Religious liberty and the separation of religion and state are

constitutional principles that must be protected and preserved

in order to maintain our democratic society.”

INTRODUCTION AND SUMMARY OF ARGUMENT

The displays of the Ten Commandments posted by the

petitioner Kentucky counties in their courthouses violate the

Establishment Clause because, regardless of their effect, the

displays are animated by an improper purpose to advance or

endorse a particular religion or religious belief. The record

shows that the actual purpose of the government actors was

nothing more or less than to display the Ten

Commandments—as the Word of God—in the county

courthouses. All their other actions with respect to the

displays were intended to achieve that overarching religious

objective.

Not surprisingly, the counties’ courthouse displays of the

Ten Commandments achieved their intended effect of

advancing and endorsing the religious beliefs of particular

faiths. The focus of this brief, however, is.the independent

significance under the Establishment Clause of a government

actor’s actual purpose.

Petitioners and their amici seek to use this case to

overturn long-standing precedent from this Court affirming

time and again that when the government acts with the actual

purpose of advancing, endorsing, inhibiting, or disapproving

religion in general or a particular faith specifically, it violates

the Establishment Clause. The Court should firmly reject

this attempt to overturn well-established doctrine, which

reflects the core Establishment Clause mandate that

government must remain neutral in matters of religion.

Neutrality is violated by a purpose to advance, endorse,

inhibit, or disapprove religion or religious belief. Even if,

unlike the posting of the displays at issue here, a government

action did not result in an improper effect, government must

not be allowed to pursue improper religious or anti-religious

purposes, rather than act for legitimate secular ends. If the

Court were to abandon its long-standing commitment to

enforcing the Establishment Clause’s concern with actual

government purpose, this would open the door to blatant

pursuit by government of religious ends dressed up in a thin,

purportedly secular veneer, like the displays in this case. The

purpose test has stood the test of time. Its elimination would

serve no end except to unleash the very sectarian conflict in

politics that the Establishment Clause was meant to guard

against.

Nothing justifies the radical surgery proposed by

petitioners and others here. There is no basis to the claim

that inquiring into actual purpose is somehow unmanageable.

Courts routinely determine the actual purpose motivating the

actions of persons in many other areas of the law. Indeed,

the actual purpose of government officials is critical in many

areas of constitutional law in addition to the Establishment

Clause. For example, government action that is not facially

discriminatory but has disparate effects will be invalidated

under the Equal Protection Clause only if the government

decisionmaker acted because of, rather than in spite of, the

differential impact. Inquiring into aciual purpose is no less

manageable under the Establishment Clause than under the

Equal Protection Clause, and it is equally critical to the

constitutional guarantees of neutrality of both.

The United States’ suggestion that the Court adopt an

“objective purpose” test is just a sub rosa plea to eliminate

inquiry into the decisionmaker’s actual purpose altogether.

See Brief Amicus Curiae of United States (December 8,

2004) (hereinafter, “U.S. Br.”)) What the United States labels

“objective purpose” is nothing other than the objective effect

of a display or other government action. See id. The United

States’ test thereby retains a purpose prong in name alone. If

adopted, this proposal would prevent courts from inquiring

into the actual purpose that motivated government action,

even when an official candidly admits that the action was for

the purpose of endorsing or disapproving particular religious

views. The Court should not accept this invitation to put

blinders on the Establishment Clause.

To fulfill its critical role in guarding against government

officials undertaking to advance or inhibit religion or

religious belief, the examination of the actual purpose behind

a government action under the Establishment Clause must

have teeth. Thus, as this Court has frequently made clear,

moderate deference to the stated purposes of government

officials should not prevent courts from exposing sham

secular purposes. As in any area of the law, there should be

no artificial limitations on the evidence that may be

considered in discerning whether the actual purpose of a

government actor is impermissible under the Establishment

Clause. Equally important, the mere presence of some

secular purpose cannot save invalid actions when the

government’s predominant purpose is one of advancing or

endorsing religion. The Court should not countenance

subterfuges that would make a mockery of the Establishment

Clause.

ARGUMENT

I. Barring Government From Acting With The Actual

Purpose Of Advancing Or Endorsing Religion Is A

Core Function Of The Establishment Clause.

This Court’s precedents establish unambiguously that the

Establishment Clause bars government officials from acting

with the actual purpose of advancing or endorsing—or

inhibiting or disapproving—religion generally or particular

religions specifically. No ground exists for brushing aside

stare decisis and departing from that settled precedent. To

the contrary, preventing government from pursuing an actual

purpose of advancing, endorsing, inhibiting, or disapproving

religion is critical to achieving one of the Establishment

Clause’s central goals: ensuring that government remains

neutral in religious matters. Nor is there merit to the

argument that inquiry into actual purpose should be

abandoned because it is somehow unworkable. Discerning

an actor’s actual purpose or intent is a core competence of

the judicial power, and one that is central in many other areas

of constitutional law. There is no justification for

abandoning the time-tested purpose inquiry—whether

overtly, as requested by petitioners, or covertly, by collapsing

purpose into effect under the rubric of “objective purpose,”

as proposed by the United States.

A. Under’ Long-Settled Precedent, Improper

~ Religious Purpose Is a Sufficient and Independent

Ground for Setting Aside Government Action.

This Court has long held that under the Establishment

Clause, government officials may not act with the purpose of

advancing or endorsing religion. See, e.g., Sch. Dist. of

Abington Township v. Schempp, 374 U.S. 203, 222 (1963).

The Court reaffirmed the independent importance of

assessing purpose when it summarized its Establishment

Clause jurisprudence in the three-prong test articulated by

Lemon v. Kurtzman, 403 U.S. 602, 602 (1971): “First, the

statute must have a secular legislative purpose; second, its

principal or primary effect must be one that neither advances

nor inhibits religion; finally, the statute must not foster an

excessive government entanglement with religion.” Jd. at

612-13 (citations and quotation marks omitted). The Court

has repeatedly applied that analytic framework when

reviewing government actions challenged under the

Establishment Clause. See, e.g., County of Allegheny v.

ACLU, 492 U.S. 573, 592 n.44 (1989) (citing cases). As the

Court recently reaffirmed, “(t]he Establishment Clause ...

prevents a State from enacting laws that have the ‘purpose’

or ‘effect’ of advancing or inhibiting religion.” Zelman v.

Simmons-Harris, 536 U.S. 639, 648-49 (2002); see also id. at

669 (O’Connor, J., concurring) (explaining _ that

Establishment Clause purpose and effect “test today is

basically the same as that set forth in School District of

Abington Township v. Schempp, 374 U.S. at 222”).

The prongs of the established test are each independent

and conclusive, so that a finding of improper purpose under

the first prong is dispositive. “If the law was enacted for the

purpose of endorsing religion, ‘no consideration of the

second or third criteria is necessary.”” Edwards v. Aguillard,

482 U.S. 578, 585 (1987) (quoting Wallace v. Jaffree, 472

U.S. 38, 56 (1985)); see also County of Allegheny, 492 U.S.

? In Agostini v. Felton, 521 U.S. 203, 218, 232-33 (1997), the

“entanglement” prong was folded into the “effects” prong, at least with

respect to cases concerning government aid to religious educational

institutions. Entanglement is not at issue in this case, however.

at 592 (noting that purpose was decisive in Wallace and

Edwards). Even if a government program may not

ultimately have an unconstitutional effect, a finding of

religious purpose invalidates the government action under the

Establishment Clause. See, e.g., Santa Fe Indep. Sch. Dist. v.

Doe, 530 U.S. 290, 316 (2000) (“Government efforts to

endorse religion Cannot evade constitutional reproach based

solely on the remote possibility that those attempts may

fail”).

In recent years, particularly in cases concerning religious

displays on public property, the Court has refined its

Establishment Clause jurisprudence by emphasizing the

question of whether the government improperly endorses (or

disapproves of) religion. See, e.g., Allegheny, 492 U.S. at

592-93; Lynch v. Donnelly, 465 U.S. 668, 690-92 (1984,

(O’Connor, J., concurring). Some lower courts—most

notably and explicitly the Third Circuit—have stated that

“[u)nder the ‘endorsement’ approach, we do not consider the

County’s purpose in determining whether a religious display

has violated the Establishment Clause; instead, we focus on

the effect of the display on the reasonable observer.”

Freethought Soc’y of Greater Philadelphia v. Chester

County, 334 F.3d 247, 261 (3d Cir. 2003). But that directly

contradicts this Court’s formulation of the endorsement

standard, which separately preserves both a purpose and an

effect prong.

* See also Modrovich v. Allegheny County, 385 F.3d 397, 401 (3d Cir.

2004); Tenafly Eruv Association, Inc. v. Borough of Tenafly, 309 F.3d

144, 174 (3d Cir. 2002), cert. denied, 534 U.S. 942 (2003). Although the

Third Circuit continues to consider purpose separately under Lemon, it

treats the endorsement standard and Lemon as “separate tests” to be

applied seriatim and, as explained above, eliminates consideration of

actual purpose in favor of a purely objective standard when considering

endorsement.

As Justice O’Connor explained in her seminal

concurrence in Lynch, “[t]he meaning of a statement to its

audience depends both on the intention of the speaker, and on

the ‘objective’ meaning of the statement to the community.”

465 U.S. at 690 (O’Connor, J., concurring). “Examination of

both the subjective and the objective components of the

message communicated by a government action is therefore

necessary to determine whether the action carries a forbidden

meaning.” Jd (emphasis added). Accordingly, improper

endorsement (or disapproval) of religion may be established

either by showing an improper purpose of endorsement or by

showing an improper effect of endorsement. See id. (“To

answer th[e] question” of endorsement, court “must examine

both what [the state] intended to communicate” and “what

message [it] actually conveyed” to a reasonable observer)

(emphasis added). Under this analysis, then,

[t]he purpose prong ... asks whether government's

actual purpose is to endorse or disapprove of

religion. The effect prong asks whether, irrespective

of government’s actual purpose, the practice under

review in fact conveys a message of endorsement or

disapproval. An affirmative answer to either question

should render the challenged practice invalid.

Id. (emphasis added). Accordingly, the endorsement analysis

preserves the Court’s well-established framework for

invalidating government action that has an improper actual

purpose, regardless of its objective effect (and vice versa).

See Richard H. Fallon, Jr., Implementing the Constitution,

111 Harv. L. Rev. 56, 92-93 (1997) (“[T]he ‘endorsement’

test that has been favored by some Justices in recent years as

a measure of Establishment Clause violations retains a place

for inquiries into governmental purpose”’).

In sum, the Court “continue[s] to ask whether the

government acted with the purpose of advocating or

inhibiting religion, and the nature of that inquiry has

remained largely unchanged.” Agostini, 521 U.S. at 222-23.

B. Prohibiting Government From Acting With the

Actual Purpose of Advancing or Endorsing

Religion Is Necessary to Safeguard the

Fundamental Establishment Clause Mandate of

Government Neutrality with Respect to Religion.

No ground exists for disturbing this settled understanding

that, regardless of the objective effect of its action,

government may not act with an improper religious purpose.

To the contrary, the independent significance of the inquiry

into purpose is a crucial lynchpin for maintaining a core

Establishment Clause mandate: government neutrality

concerning matters of religion. Ensuring that government

actions are not motivated by an improper purpose of

advancing, inhibiting, endorsing, or disapproving religion is

necessary to guarantee that neutrality.

The Court has long recognized that a fundamental

premise of the Religion Clauses is that “the State is firmly

committed to a position of neutrality” with respect to

religion. Sch. Dist. of Abington Township v. Schempp, 374

U.S. 203, 226 (1963). Thus, “‘[a] proper respect for both the

Free Exercise and the Establishment Clauses compels the

State to pursue a course of “neutrality” toward religion,’

favoring neither one reiigion over others nor religious

adherents collectively over nonadherents.” Bd. of Educ. of

Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 696

(1994) (quoting Comn . for Public Educ. & Religious Liberty

v. Nyquist, 413 U.S. 756, 792-793 (1973)). Disapproval of

religion is likewise proscribed. See Allegheny, 492 U.S. at

627 (O’Connor, J., concurring) (“[G]overnment is to be

neutral in matters of religion, rather than showing either

favoritism or disapproval towards citizens based on their

personal religious choices . . bey

Prohibiting government from acting with the purpose of

advancing or endorsing religion is critical to safeguarding

this neutrality. “The Establishment Clause’s ‘purpose’

requirement aims at preventing the relevant governmental

decisionmaker . . . from abandoning neutrality and acting

with the intent of promoting a particular point of view in

religious matters.” Corp. of Presiding Bishop of Church of

Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335

(1987); see also Schempp, 374 U.S. at 222 (framing the test

for neutrality in terms of purpose and effect). It also ensures

that neutrality is more than merely superficial. “Purpose is a

necessary backstop to facial neutrality. A law’s facially

neutral categories may be pretextual, especially where they

produce disproportionate effects. The absence of a strong

secular justification for the categorization is the best evidence

that the program favors religion over nonreligion, or one

religion over another.” Michael McConnell, Religious

Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 144

(1992); see also id. (“abandoning the purpose prong would

be an overreaction”).° Indeed, one commentator has even

* Of course, neutrality “is by no means the only ‘axiom in the history and

precedent of the Establishment Clause.” Mitchell v. Helms, 530 US.

793, 839 (2000) (O’Connor, J., concurring) (quoting Rosenberger v.

Rector and Visitors of Univ. of Va., 515 U.S. 819, 846 (1995) (O’Connor,

J., concurring)); see also Mitchell, 530 U.S. at 884 (Souter, J., dissenting)

(“The insufficiency of evenhandedness neutrality as a stand-alone

criterion of constitutional intent or effect has been clear from the

beginning of our interpretive efforts”).

* Accordingly, inquiry into purpose may also serve to confirm instances

when government action has the improper effect of advancing (or

inhibiting) religion. Determining whether a government action has the

impermissible effect of endorsing religion “depends on a sensitivity to the

unique circumstances and context of a particular challenged practice and,

like any test that is sensitive to context, it may not always yield results

argued that “the secular purpose doctrine cannot be discarded

. .. without effectively reading the Establishment Clause out

of the Constitution altogether.” Andrew Koppelman, Secular

Purpose, 88 Va. L. Rev. 87, 88 (2002). Whether this

overstates the case or not, it is beyond peradventure that a

government act taken with improper purpose necessarily

violates the Establishment Clause in its own right, regardless

of the act’s effect.

In sum, “the secular purpose requirement ... serves an

important function. It reminds government that when it acts

it should do so without endorsing a particular religious belief

or practice that all citizens do not share. In this sense the

secular purpose requirement is squarely based in the text of

the Establishment Clause it helps to enforce.” Wallace, 472

U.S. at 75-76 (O’Connor, J., concurring).

C. Determining a Government Actor’s Actual

Purpose Is Not Unmanageable But Is Instead a

Core Competence of the Judiciary Exercised in

Many Areas of Constitutional Law.

The Court should also reject the argument that inquiring

into a government actor’s actual purpose is somehow

unworkable. In many areas of the law—not least

constitutional law—courts must frequently determine the

actual purpose or intent of persons, including government

actos and entities.

with unanimous agreement at the margins.” Allegheny, 492 U.S. at 629

(O’Connor, J., concurring). In these difficult cases, evidence of an

improper purpose—which may be undisputed or candidly admitted—can

tip the balance toward a finding of improper effect.

1. Determining the actual purpose behind an

action is a core competence of the judiciary.

Some members of the Court have suggested abandoning

the purpose test on the grou that determining the subjective

motivation behind a govermrient act is too difficult. See

Edwards, 482 U.S. at 640 (Scalia, J., dissenting). On this

view, “while it is possible to discern the objective ‘purpose’

of a statute, (i.ec., the public good at which its provisions

appear to be directed), . . . discerning the subjective

motivation of those enacting the statute is, to be honest,

almost always an impossible task.” Jd. at 636. But see infra

Section LD (criticizing concept of “objective purpose”).

Because of this difficulty, the argument goes, _ Judges _—

will very likely reach the wrong conclusion.” Ia.°

That objection to the purpose inquiry is fundamentally

misplaced. There is nothing mysterious about determining

an actor’s purpose. “{E]ven a dog distinguishes between

being stumbled over and being kicked.” Oliver Wendell

Holmes, Jr., The Common Law 3 (Little, Brown & Co. 1923)

(1881); see also Ashutosh Bhagwat, Purpose Scrutiny in

Constitutional Analysis, 85 Cal. L. Rev. 297, 322 (1997)

(“{I]t is not particularly difficult to make reasonable

judgments about the motivations behind legislation in most

cases”). Courts, including this Court, have looked to a

variety of sources, including statutory text, social context,

and the history of government action, to determine the actual

purpose behind government action. See infra Part II.

° The argument that determinations of purpose are especially complex

with respect to collegial bodies has also been advanced. See Edwards,

482 U.S. at 638 (Scalia, J., dissenting). This problem is alleviated under

the Establishment Clause by framing the purpose inquiry as one of

“predominance.” See infra Part Ill. In any event, this difficulty is m»

greater under the Establishment Clause than it is under any of the othes

areas of law in which intent is relevant. See infra Section I.C.2.

In some cases, the existence of an improper purpose is

not even a subject of dispute. Not every government actor

with the actual purpose of advancing or endorsing religion

dissembles or tries to hide that purpose. Instead, he or she

may proclaim it, as then-Alabama Chief Justice Moore did

when erecting a granite monument inscribed with the Ten

Commandments in the rotunda of the state Judicial Building.

As the Eleventh Circuit made clear in finding an improper

purpose, “no psychoanalysis or dissection is required” in

such a case, “where there is abundant evidence, including his

own words, of the Chief Justice’s purpose.” Glassroth v.

Moore, 335 F.3d 1282, 1296 (11th Cir. 2003), cert. denied,

540 U.S. 1000 (2003). Similarly, in Wallace v. Jaffree, the

Court found “unrebutted evidence of [improper] legislative

intent,” evidence which was simply “confirmed by a

consideration of the relationship between this statute and the

two other measures that were considered in this case.” 472

U.S. at 58.

But even considering that determinations of actual

purpose—like all determinations of fact—are sometimes

difficult, it by no means follows that courts are ill-suited to

the task. On the contrary, such determinations reflect a core

competence of the judiciary. “Judicial review of legislative

justifications and motives riight well be the task judges are

most well positioned to perform.” Richard H. Pildes,

Avoiding Balancing: The Role of Exclusionary Reasons in

Constitutional Law, 45 Hastings L.J. 711, 729 n.45 (1994).

It may even be that judges are better able to identify

improper motivations than improper effects. For “if we ask

what subject matter judges as a class are most knowledgeable

about (aside from legal doctrine), it is surely politics. It is

not physics, chemistry, biology, engineering, economics,

social psychology, and the countless other disciplines”

relevant to assessing the effects of government action.

Donald H. Regan, Siamese Essays: (I) CTS Corp. v.

Dynamics Corp. of America and Dormant Commerce Clause

Doctrine; (II) Extraterritorial State Legislation, 85 Mich. L.

Rev. 1872, 1872-73 (1987). Thus, “the argument that courts

lack the competence . . . to engage in purpose scrutiny is

highly suspect.” Bhagwat, 85 Cal. L. Rev. at 322.

2. Other areas of constitutionai law likewise turn

on the actual purpose behind government

action.

Concern with government purpose _ pervades

constitutional law. Decades of constitutional jurisprudence

rest on “the idea that the quality and permissibility of

governmental acts, and hence their constitutionality, should

sometimes depend on their purposes.” Fallon, 111 Harv. L.

Rev. at 98.

In Commerce Clause cases, for example, the Court has

examined purpose as well as effect in deciding whether a

state law improperly discriminates against interstate

commerce. See, e.g., West Lynn Creamery, Inc. v. Healy,

512 U.S. 186, 201 (1994) (“The choice of constitutional

means . . . cannot guarantee the constitutionality of the

program as a whole. . . . [O]ur cases have eschewed

formalism for a sensitive, case-by-case analysis of purposes

and effects”); Bachus Imports, Ltd v. Dias, 468 U.S. 263,

270 (1984) (noting that “[a] finding that state legislation

constitutes ‘economic protectionism’ may be made on the

basis of . . . discriminatory purpose”) (citing Hunt v.

Washington Apple Adver. Comm'n, 432 U.S. 333, 352-53

(1977)). Challenges under the Bill of Attainder Clause

require examination of legislative purpose under a “test of

punishment [that] is strictly a motivational one: inquiring

whether the legislative record evinces a congressional intent

to punish.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 480

(1977). Purpose has likewise been found determinative in

Free Exercise cases. See, e.g., Church of the Lukumi Babalu

Aye v. City of Hialeah, 508 U.S. 520 (1993) (striking down

facially neutral ordinance enacted with actual purpose of

targeting practices of Santeria religion).

Nowhere has the Court paid greater consideration to

governmental purpose than in its Equal Protection

jurisprudence. The Court’s decisions in Washington v.

Davis, 426 U.S. 229 (1976), and Arlington Heights v.

Metropolitan Housing Development Corporation, 429 U.S.

252 (1977), made discriminatory purpose the central focus of

claims of racial discrimination brought under the Equal

Protection Clause. See Village of Arlington Heights, 429

U.S. at 265 (“Proof of racially discriminatory intent or

purpose is required to show a violation of the Equal

Protection Clause”). And the Court in Adarand Construction

v. Pena, 515 U.S. 200 (1995), justified strict scrutiny analysis

by its ability to “smoke out” improper legislative “goal[s].”

Id. at 226 (quoting City of Richmond v. J.A. Croson Co., 488

U.S. 469, 493 (1989)). But concern with discriminatory

purpose has not been limited to racial classifications or

heightened scrutiny. Even under rational basis review, some

purposes “such as ‘a bare . . . desire to harm a politically

unpopular group’—are not legitimate state interests.” City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447 (1985);

accord Romer v. Evans, 517 U.S. 620, 634-35 (1996).

The relevant purpose in these other areas of law, as under

the Establishment Clause, is the actual purpose of the

government decisionmaker, not a hypothetical “objective

purpose” attributed to her by an observer. As the Court noted

in Personnel Administrator v. Feeney, 442 U.S. 256 (1979),

“discriminatory purpose . . . implies the decisionmaker . . .

selected or reaffirmed a particular course of action at least in

part ‘because of,’ not merely ‘in spite of its adverse effects

upon an identifiable group.” Jd. at 279. Thus, when asked to

review a facially neutral provision of the Mississippi State

Constitution, the Court concluded without dissent that it

violated the Equal Protection Clause because its “original

enactment . . . was motivated by a desire to discriminate

against blacks.” Hunter v. Underwood, 471 U.S. 222, 233

(1985). And the Court did so despite its observation that

“{p]roving the motivation behind official action is often a

problematic undertaking.” /d. at 228.

Questioning the role or utility of inquiring into legislative

purpose in Establishment Clause challenges would call into

question the purpose analysis in these other areas of law

where it also has been central. Occasional difficulty in

assessing purpose cannot justify abandonment, or even

denigration, of this essential component of Establishment

Clause jurisprudence. Indeed, “it would be unprincipled to

abandon the purpose prong of the Lemon test on these

grounds if the Court intends to inquire into legislative

purpose in other contexts.” McConnell, 59 U. Chi. L. Rev. at

143.

D. The Court Should Reject the United States’

Suggestion That It Abandon Inquiry into Actual

Purpose and Look Instead at “Objective Purpose,”

Which as Defined by the United States Is

Synonymous with Effect.

The Court should likewise reject the argument of the

United States, as amicus curiae, that “[t]he Establishment

Clause inquiry should turn upon the objective purpose served

by the display as a whole, not subjective motivation.” U.S.

Br. at 6. With respect to “passive displays,” such as that

here, the United States would limit inquiry to “the

objectively discernible purpose,” defined as, “whether the

display itself . . . expresses favoritism for or an endorsement

of religion.” Jd. at 26. Although the United States’ proposal

purports to preserve a separate purpose prong under the

Establishment Clause, in reality the Government’s so-called

“objective purpose” test collapses purpose into effect,

thereby eviscerating the independent significance of the

former. It is therefore in conflict with settled law and the

fundamental Establishment Clause mandate of neutrality.

The Court’s precedents leave no room for doubt that the

“purpose” that is relevant to the Establishment Clause is the

actual purpose behind the government’s action, which has an

inherently subjective aspect and cannot be reduced to an

objective test. “Lemon’s first prong focuses on the purpose

that animated the adoption of the Act.” Edwards, 482 U.S. at

585. Purpose, properly understood in this context, is what

motivates action; it is specific to the decisionmaker and

necessarily subjective. This Court has made clear that it was

scrutinizing actual, subjective intent in those cases where it

struck down state action on the basis of impermissible

religious purpose. See, eg. id. at 587 (evaluating

“governmental intention” and “the purpose of the legislative

sponsor”); Wallace, 472 U.S. at 57 (noting testimony of the

biil’s sponsor that “[he] did not have no other purpose in

mind” when he proposed the bill); Epperson v. State of Ark.,

393 U.S. 97, 108 (1968) (“{F]undamentalist sectarian

conviction was and is the law’s reason for existence”); see

also Mellen v. Bunting, 327 F.3d 355, 372 (4th Cir. 2003)

(explaining that this Court’s Establishment Clause standard

requires “inquiry into the subjective intentions of the

government”), cert. denied, -- U.S. --, 124 S. Ct. 1750

(2004). Indeed, the Court has “consistently described the

Establishment Clause as forbidding not only state action

motivated by the desire to advance religion, but also that

intended to ‘disapprove,’ ‘inhibit,’ or evince ‘hostility’

toward religion.” Edwards, 482 U.S. at 616 (Scalia, J.,

dissenting) (emphasis added).

The United States’ proposal that the Court should

examine only the “objective purpose served by the display

itself” to determine “whether the display itself—based on its

design, content, or emphasis—expresses favoritism for or an

endorsement of religion,” U.S. Br. at 26, truncates the inquiry

into the actual purpose behind a display. While the labels

“objective” and “subjective” can have varied meanings

depending on context, “objective purpose” as defined by the

United States refers solely to the message an objective

observer would discern from the display itself.’ That is

exactly the inquiry under the Establishment Clause’s effect

test. See Lynch, 465 U.S. at 690 (O’Connor, J., concurring)

(“The effect prong asks whether, irrespective of

government’s actual purpose, the practice under review in

fact conveys a message of endorsement or disapproval”).

Thus, the ultimate question to be answered by the effect

inquiry—as under the “objective purpose” standard proposed

by the United States—is “the ‘objective’ meaning of the

statement in the community,” whereas the ultimate question

to be answered by the purpose prong is the actual “intention

of the speaker.” Jd. “[B]oth the subjective and the objective

components of the message communicated by a government

action,” id. at 690-91, must be neutral with respect to

religion. Restricting judicial review to the objective

component alone may allow government action to stand

when it is intentionally taken to promote religion.

To be sure, the objective message sent by a display may

well be evidence—in some instances, the best evidence—of

the government’s actual or subjective purpose in posting it.

If a government official erected a display on public property

” Indeed, it is not at all clear what the words “objective purpose” might

mean if they denote neither the actual purpose of the actor nor the-

objective effect of his actions. See Fallon, 111 Harv. L. Rev. at 73 n.99

(“The notion of a statute having an objective aim, that is different from

both the subjective purpose of those who enacted it and at least partially

distinct from its effects, is not wholly free from mystery”).

of the Ten Commandments under a caption prominently

asserting, “This is the Word of God,” hardly any other

inference would be possible than that the official acted with

the actual purpose of advancing and endorsing the specific

faiths adhering to that purely religious doctrine. In such an

instance, the actual purpose and objective effect of the

display would be one and the same. But that is not always

true, and the objective meaning of a display is not always the

only or best evidence of the actual intent of those who

created the display. As Justice O’Connor explained in

Lynch, “listeners need not rely solely on the words

themselves in discerning the speaker’s intent: they can judge

the intent by, for example, examining the context of the

statement or asking questions of the speaker.” 465 U.S. at

690 (O’Connor, J., concurring). “If the audience is large, as

it always is when government ‘speaks’ by word or deed,

some portion of the audience .. . will inevitably receive the

intended message.” Jd. But the United States’ exclusive

focus on whether the “objective purpose” of “the display

itself” is to “express[] favoritism for or an endorsement of

religion,” U.S. Br. at 26, would preclude any inquiry into the

“intended message“ of a display, even when distinct from the

“message determined by the ‘objective’ content of the

statement.” Lynch, 565 U.S. at 690.

The fundamental defect in the position of United States is

highlighted by a hypothetical variation on the recent case of

Alabama Chief Justize Moore, who “installed a two-and-one-

half ton monument to the Ten Commandments as the

centerpiece of the rotunda in the Alabama State Judicial

Building. He did so in order to remind all Alabama citizens

of, among other things, his belief in the sovereignty of the

Judeo-Christian God over both state and church.” Glassroth,

335 F.3d at 1284. His religious purpose was “self-evident”

and the display plainly unconstitutional. See id. at 1297. If

the United States’ “objective purpose” standard were

accepted, however, Chief Justice Moore could have

continued to pursue his actual purpose—which was

admittedly to endorse a particular religious faith—by framing

the monument with prominent secular window dressing, such

as depictions of historical or legendary instances of secular

lawgiving. If an observer of the display would believe that

its “objective purpose” was to commemorate lawgiving, then

it would be constitutional on the United States’ view,

notwithstanding Chief Justice Moore’s candid admission that

his actual purpose continues to be an “acknowledge[ment of]

the law and sovereignty of the God of the Holy Scriptures,

and . . . ‘God’s overruling power over the affairs of men.”

Glassroth, 335 F.3d at 1296. Under the United States’

“objective purpose” standard, government actors could act

with the most impermissible religious preferences or

hostilities—provided they do so in a way that obscures their

intentions. The neutrality principle would be eviscerated.*

Of course, that is essentially what occurred in this case.

Although petitioners have not been as forthright concerning

their religious purpose as was Chief Justice Moore,

consideration of all the evidence in the record in this case

gives rise to the unmistakable inference that the petitioners’ —

actual purpose was to display the Ten Commandments—an

indubitably religious text—no matter what.” The additions of

purportedly secular texts—many of which emphasized the

display’s religious theme or, alternatively, had no discernable

® Indeed, the United States would not even require that the secular

window-dressing combine with the religious text to create a coherent

message. Any combination of secular and religious texts no matter how

“uncommonly silly or disunified,” U.S. Br. at 21 n.11, appears to pass

muster under the Government’s “objective purpose” standard.

* “The Ten Commandments are undeniably a sacred text in the Jewish

and Christian faiths, and no legislative recitation of secular purpose can

blind us to that fact.” Stone v. Graham, 449 U.S. 39, 41 (1980).

connection to the display of the Ten Commandments—were

simply an effort to obscure the objective effect of

endorsement, even while ensuring that the sacred text the

officials regard as the Word of God remains enshrined in the

courthouses.

II. Reviewing Courts Can And Must Look Behind

Pretextual Statements Of Secular Purpose That Seek

To Mask An Impermissible Religious Purpose.

In order to realize the goal of ensuring government

neutrality with respect to religion, the inquiry into purpose

must be rigorous. In particular, although the judiciary owes

some deference to decisionmakers’ statements of purpose,

the inquiry is only meaningful if courts evaluate articulations

of secular purpose in light of all available evidence and

disregard those that are shams. The displays under

consideration reflect an attempt to use secular “window

dressing” to obscure or distract attention from government

actions impermissibly taken to advance or promote religion.

Reviewing courts must question carefully those government

actions that have been modified in an effort to dilute their

religiosity, to determine whether the modification reflects a

genuine secular purpose, or merely attempts to camouflage

the original religious purpose.

Of course, a decisionmaker’s stated purpose may be

religious on its face. See, e.g., Wallace, 472 U.S. at 56-57

(“The sponsor of the bill . . . indicat[ed] that the legislation

was an ‘effort to return voluntary prayer’ to the public

schools.’”) (quoting App. 50); Glassroth, 335 F.3d at 1296

(“Chief Justice Moore testified candidly that his purpose in

placing the monument in the Judicial Building was to

acknowledge the law and sovereignty of the God of the Holy

Scriptures”). With a statement of religious purpose, a

reviewing court’s inquiry is at an end and the conclusion

straightforward: the action motivated by the improper

purpose is unconstitutional.

But when the government advances a purportedly secular

purpose, the court must verify that the stated purpose in fact

motivated the challenged action. In such cases, “the

government’s characterization is, of course, entitled to some

deference. But it is nonetheless the duty of the courts to

‘distinguis[h] a sham secular purpose from a sincere one.””

Santa Fe Indep. Sch. Dist., 530 U.S. at 308 (alteration in

original) (citing Wallace, 472 U.S. at 75 (O’Connor, J.,

concurring in judgment)). Thus, mere articulations of a

secular purpose are clearly not sufficient to justify a

challenged action. The purpose inquiry is concerned with

identifying actual purpose, not a hypothetical purpose that

might plausibly justify, but did not in fact motivate, the

challenged action. See Edwards, 482 U.S. at 595 (noting that

“post-enactment testimony of outside experts” who did not

“participate[] in or contribute[] to the enactment of the law or

its implementation” “is of little use in determining the

Louisiana Legislature’s purpose in enacting this statute”).

“Under this Court’s rulings . . . such an ‘avowed’ secular

purpose is not sufficient to avoid conflict with the First

Amendment.” Stone, 449 U.S. at 41."°

advanced only after an action is challenged. Thus, the Seventh Circuit

gave little weight to a “secular purpose of recognizing the historical and

cultural significance of the Ten Commandments, issued on the eve of

litigation.” Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000), cert.

denied, 532 U.S. 1058 (2001). Similarly, in the present case, after first

displaying only the Ten Commandments, the petitioner counties have

now attempted to attribute their modified displays to a desire “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.” ACLU v.

McCreary County, 145 F. Supp. 2d 845, 848 (E.D. Ky. 2001). The

Establishment Clause’s purpose prong is not such a “low threshold,”

The display of material with “an obvious religious

nature” to further an allegedly secular purpose should put the

reviewing court on alert. Books v. City of Elkhart, 235 F.3d

292, 303 n.8 (7th Cir. 2000), cert. denied, 532 U.S. 1058

(2001). The choice of religious texts or symbols strongly

suggests that the purpose for the display was in fact religious,

particularly where, as here, the religious text was the only

material displayed originally. The United States misstates

the law on this point when it asserts that “the controlling

question is whether the display as a whole serves a secular

purpose.” U.S. Br. at 18 n.8 (emphasis added). On the

contrary, the controlling question is, and should remain,

whether the actual purpose behind the display was an

improper one. The inclusion of secular window dressing will

not affect the analysis if the government was motivated by a

desire to display religious material for the purpose of

advancing religious belief.

As has always been true of Establishment Clause

analysis, the purpose inquiry is fact-specific. “Every

government practice must be judged in its unique

circumstances to determine whether it constitutes an

endorsement or disapproval of religion.” Lynch, 465 U.S. at

694 (O’Connor, J., concurring). The true purpose of the

government actor responsible for the challenged program,

endeavor, or display must be evaluated in light of all relevant

evidence of purpose. A court may start with the text of the

statute or display, for text alone may reveal improper

purpose. See, e.g., Santa Fe Indep. Sch. Dist., 530 U.S. at

314-15. But other evidence may also be relevant, and

therefore essential, to a court’s inquiry. See id. at 315 (“Our

inquiry into this question not only can, but must, include an

examination of the circums‘ances surrounding [the] adoption

Freethought Soc'y, 334 F.3d at 267, as to be satisfied by such a clearly

[of the challenged policy]”); Edwards, 482 U.S. at 595 (“[I]n

determining the legislative purpose of a statute, the Court has

also considered the historical context of the statute, and the

specific sequence of events leading to passage of the statute”)

(citations omitted). Where the text is ambiguous, whether

facially neutral or presenting some combination of religious

and secular material, contextual evidence may be decisive.

See Hunter, 471 U.S. at 229 (noting without dissent that

“evidence of legislative intent . . . consist[ing] of the

proceedings of the convention, several historical studies, and

the testimony of expert historians” was sufficient to

“demonstrate[] conclusively that [the challenged provision of

the Alabama state constitution] was enacted with the intent of

disenfranchising blacks”).

Protestations of the dissent below notwithstanding,

consideration of a decisionmaker’s history of conduct as

evidence of purpose does not impose an “indelible

unconstitutional ‘taint’” on all future action. ACLU v.

McCreary County, 354 F.3d 438, 477 (6th Cir. 2003).

Evidence of a course of conduct is plainly relevant to the

ultimate question of actual purpose, here as in all areas of the

law. See Santa Fe Indep. Sch. Dist., 530 U.S. at 309 (“{I]n

light of the school’s history of [unconstitutional conduct), it

is reasonable to infer that the specific purpose of the policy

was to preserv : a popular state-sponsored religious practice”’)

(internal quotation omitted). The inference is inescapable in

this case that the actual purpose of the government actors was

at all times to display the Te: Commandments in their

county courthouses because of their religious significance.

Cf. Stone, 449 U.S. at 42 (per curiam) (“Posting of religious

texts on the wall serves no such educational function. If the

posted copies of the Ten Commandments are to have any

effect at all, it will be to induce the schoolchildren to read,

meditate upon, perhaps to venerate and obey, the

Commandments. However desirable this may be as a matter

of private devotion, it is not a permissible state objective

under the Establishment Clause”). Everything else was

simply a means to obtain the counties’ religious end. Even

the purportedly secular documents displayed with the Ten

Commandments were carefully chosen and excerpted to link

religion and government. That does not mean that these

decisionmakers could never create a display that included

some religious text if in fact the display had neither an

impermissible purpose nor an impermissible effect. But in

this particular case, the counties’ actual purpose was never a

permissible one.

III.The Establishment Clause Is Not Satisfied By The

Mere Existence Of Some Secular Purpose, No Matter

How Dominated By An Impermissible Religious

Purpose.

The record in this case does not suggest that petitioners

acted with any actual secular purpose. Their purported

secular purposes were clearly pretextual, as the court below

recognized. But even if the petitioners had some subsidiary

secular purpose, it is clear that the dominant purpose behind

these displays was to venerate the Ten Commandments and

to have citizens reflect on that religious text.

The secular purpose requirement “is not satisfied... by

the mere existence of some secular purpose, however

dominated by religious purpose.” Lynch, 465 U.S. at 690-91

(O’Connor, J., concurring). This Court has frequently made

clear that government action violates the Establishment

Clause where it was motivated by a predominant religious

purpose. In Edwards v. Aguillard, for example, the Court

held that a Louisiana statute violated the Establishment

Clause “because the primary purpose of the Creationism Act

is to endorse a particular religious doctrine.” 482 U.S. at

594. Similar standards were applied in Wallace v. Jaffree,

see 472 U.S. at 56 (requiring that the “actual purpose” be

“clearly secular”), and Stone v. Graham, see 449 U.S. at 41

(identifying the “pre-eminent purpose” of the challenged

state action).

Thus, a decisionmaker’s purpose need not be entirely

religious to violate the Establishment Clause. Dicta in

Bowen v. Kendrick, 487 U.S. 589 (1988), does not dictate a

different standard. While the majority there did suggest that

“a court may invalidate a statute only if it is motivated

wholly by an impermissible purpose,” this statement was not

essential to the holding of the case. In fact, the majority went

on to hold that the statute in question “was motivated

primarily, if not entirely, by a legitimate secular purpose.”

Id. at 602. Moreover, that dictum did not accurately

summarize precedent. Neither Edwards, nor Wallace, nor

Stone, all decided before Bowen, purported to apply a

“wholly religious” standard. And Justice O’Connor, who

cast the deciding vote in Lynch, explicitly disagreed with

Chief Justice Burger’s lead opinion for the Court on this

point. Compare Lynch, 465 U.S. at 690-91 with id. at 681

n.6. Previous statements by the Court, such as the conclusion

in Stone, that a challenged government action “had no secular

legislative purpose, and is therefore unconstitutional,” 449

U.S. at 41, described a sufficient condition for finding an

Establishment Clause violation based on improper purpose,

not a necessary one.

Finally, both this Court’s subsequent case law and

fidelity to stare decisis confirm that the proper standard

under the purpose prong continues to be that state action

motivated by a predominant religious purpose violates the

Establishment Clause. The majority in Santa Fe struck down

a challenged school prayer policy based on a “reasonable . . .

infer[ence}]” regarding “the specific purpose of the policy.”

520 U.S. at 309. Nowhere did tue Court determine that the

actual policy was “wholly” religious. Indeed, such a

determination would be exceedingly difficult to make, for

“(rjarely can it be said that a legislature or administrative

body . . . made a decision motivated solely by a single

concern.” Village of Arlington Heights, 429 U.S. at 265.

Insistence on such a standard would render the secular

purpose requirement a virtual dead letter. Fidelity to stare

decisis forbids the casual dismissal by dictum of a

component of Establishment Clause analysis that has endured

for over forty years. See Zelman, 536 U.S. at 648-49

(O’Connor, J., concurring).

A reviewing court must therefore ensure that, when

government decisionmakers were influenced by a purpose to

advance religion, that religious purpose did not predominate.

This may be accomplished by requiring that, once a plaintiff

establishes the existence of an improper religious purpose,

the burden shift to the defendant to show that the challenged

action would have been undertaken even in the absence of

such impermissible motive. This allocation of proof has

been adopted by the Court in other contexts where purpose is

relevant to the constitutionality of government action, see,

e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989);

Hunter, 471 U.S. at 222; Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274 (1977); Village of Arlington

Heights, 429 U.S. at 252, and accords with purpose analysis

inquiry generally. See Fallon, 111 Harv *. Rev. at 72

(“Once it is agreed which purposes are iorbidden, the

question is whether, but for the influence of some illegitimate

consideration in motivating one or more relevant

decisionmakers, the government would likely have enacted a

challenged statute or taken other contested steps”).

Where a display is erected with the purpose of exhibiting

religious texts or symbols in order to advance religion or

religious belief, and additional secular material is included as

mere dressing, the analysis is simple: the frame would not be

hung but for the picture. That is clearly the case here.

CONCLUSION

The decision of the court of appeals should be affirmed.

Respectfully submitted,

AYESHA KHAN WILLIAM M. HOHENGARTEN*