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

No. 03-1693

IN THE

Supreme Court of the United States

McCREARY COUNTY, KENTUCKY, ET AL.,

Petitioners,

Vv.

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 ASHBROOK CENTER FOR PUBLIC

AFFAIRS AND OHIO SENATOR BILL HARRIS IN SUPPORT OF

PETITIONERS

PETER W. SCHRAMM STEVEN C. SEEGER

EXECUTIVE DIRECTOR, Counsel of Record

ASHBROOK CENTER FOR LARRY J. OBHOF

PUBLIC AFFAIRS KIRKLAND & ELLIS LLP

401 College Ave 200 East Randolph Drive

Ashland, OH 44805 Chicago, IL 60601

(419) 289-5413 (312) 861-2000

(312) 861-2200 Facsimile

SENATOR BILL HARRIS

PRESIDENT-ELECT,

OHIO SENATE

Ohio Statehouse

Colurnbus, OH 43215

(614) 466-8086

Counsel for Amici Curiae

December 8. 2004

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

QUESTIONS PRESENTED

Whether the Establishment Clause is violated by a privately

donated display on government property that includes eleven equal

size frames containing an explanation of the display along with

nine historical documents and symbols that played a role in the

development of American law and government where only one of

the framed documents is the Ten Commandments and the

remaining documents and symbols are secular.

Whether a prior display by the government in a courthouse

containing the Ten Commandments that was enjoined by a court

permanently taints and thereby precludes any future display by the

same government when the subsequent display articulates a

secular purpose and where the Ten Commandments is a minority

among numerous other secular historical documents and symbols.

Whether the Lemon test should be overruled since the test is

unworkable and has fostered excessive confusion in Establishment

Clause jurisprudence.

Whether a new test for Establishment Clause purposes should

be set forth by this Court when the government displays or

recognizes historical expressions of religion.

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ...0.......:.ccccccccssesseessesseeseeeeeenseees l

SUMMARY OF THE ARGUMENT......0...........ccccsccssessseeseeeeseees 2

i aed deter ialtetalnenaantionssedepeneennetnenesinesinianni 4

I. Plaintiffs Have Not Alleged Sufficient Injury to

Establish Article II] Standing. ..................:ccccccceeeeeeeeeeeees 4

Il. The Constitution Does Not Prohibit the Inclusion

of the Ten Commandments in Historical Displays

II UII cnciccncsccnnecsnnesescnsiesnecnssessesssonssess 8

A. The Courthouse Displays Had a Secular

STITT hatieunsciancocstonsesdsnsdinisesdnnsenienauitenemetonserenees 9

x The Sixth Circuit Applied an

Erroneous Legal Standard in its

Analysis of the Defendants’

Purpose for Posting the

Courthouse Displays. .................0:0c000 9

2. The Content and Context of the

Displays Demonstrate a Secular

I ipecediseehinteenetenesenpscesinieesceniaincanes 1]

3. The Sixth Circuit Incorrectly

Applied Controlling Precedent

TT cissicenedtiunesennenitniawentess 13

4. The Sixth Circuit Erroneously

Scrutinized the Historical

Accuracy of the Displays. ................... 17

5. The Sixth Circuit Erred in

Finding that the “Evolution” of

the Displays Demonstrates a Non-

BNI cncssntsihitnscnseninnoseneenonnate 19

ill

TABLE OF CONTENTS (Cont.)

Page

Including the Ten Commandments in the

Courthouse Displays Did Not Have the

Effect of Endorsing Religion. ..............:000000 22

CID: cesnscvtnnsiscnincsasiisiscicniennntaceneiiineniibuisiiiiipaimiaiiineins 28

iV

T IE

: Page(s)

Cases

ACLU of Kentucky v. McCreary County,

145 F. Supp. 2d 845 (E.D. Ky. 2001)

IIIT Ui ctriintuitdtsieebctnstspiindidensipasennianenes 7, 14, 19, 24

ACLU of Kentucky v. McCreary County,

354 F.3d 438 (6th Cir. 2003)

TIE Wiisrstaksncnidiincianentesninenansiinenatintniiniess passim

ACLU of Kentucky v. McCreary County,

ee ee iinitenibitihintiniennniienesmintegnitionen 21

ACLU of Kentucky v. McCreary County,

96 F. Supp. 2d 679 (E.D. Ky. 2000)

7. gg NUNS T EN renO ve DEED NEU TTT TEUNT passim

ACLU of Kentucky v. Mercer County,

as a PE ecistncscccsnseiennsmncsevinanesinesndtasens 25

ACLU of Kentucky v. Pulaski County,

es A cee Se cesccncnsnnesecncnsenstesnsnnsnsnnsts 4,5,7

ACLU of New Jersey v. Schundler,

BE reer 21, 22

ACLU of Ohio v. Ashbrook,

375 F.3d 484 (6th Cir. 2004).........ccccsscesseseeeeeeseenes 11,17

ACLU of Ohio v. Capitol Square Review and Advisory Board,

OP | ee 27

Adland v. Russ, 7

are Cs Se ecrtnrencisnnncceenstmnanceensionn 11, 20

Board of Education v. Allen,

ee ee Ce tracnsennccrsnnesnsecenscenennniensssentiniecmnnnntin 27

v

TABLE OF AUTHORITIES (Cont.)

Page(s)

Bowen v. Kendrick,

ca cadiceneinel 9,11

Capitol Square Review and Advisory Board v. Pinette,

ee Pe ecdadaaicniitnscsticdlbisaitiliitgasiaseianiaden 22, 23

Committee for Public Education & Religious Liberty v. Regan,

a ciceciesisnisnsssindisdiaintenedececuinssiniieinddsnanitiogn 10

County of Allegheny v. ACLU,

Re ee re cccllinscatntitencssnienmnyntnnctsiinavemnens passim

Edwards v. Aguillard,

ee een ieenesccasstettinesedtneesisecennnseinmninasen passim

Elk Grove Unified School Distric: v. Newdow,

ae Se CI NII Ne iicikcpriennistutedesiisisiestianicieinstotiincsuendeneionts 27

Epperson v. Arkansas,

Ie PII ccisibiclocsiceediceinieniniappensibintesciabiiansianieilihinieies 10

Everson v. Board of Education,

ES Ceca ois asin cinnareteniitinctnntiiaatnitedaiimnipnaioléa 27

FW/PBS, Inc. v. City of Dallas,

Re ee I ccisnacsnsiidaihbesscsanitiiindiebdndienemidennsianesatadieian 4

Good News Club v. Milford Central School,

a MITT itci-scisiasntdtiintesnenininasiniatenevnennsiasibiidl 23

Grand Rapids School District v. Ball,

IE cisssuidictnsariiisianassicinntiionnananninnens 10

Granzeier v. Middleton,

SP Eran IEIEN, ITI cnscdisscncescihsscsisecetidanmiganmennasses 21

Griswold v. Connecticut,

I I sel nccelaeea 15

vi

TABLE OF AUTHORITIES (Cont.)

Page(s)

Hunt v. Washington State Apple Adver. Comm'n,

Sans MITE cstsidetnsehrinctatnnicincnctesdbtiaiiiineiimebatsiaiivaaas 4

Laird v. Tatum,

EE Or Ua icsesiesctscisiinicssnseiRinitatitistilainaaitasitteiubiitlieiniidebinduis 7

Larkin v. Grendel's Den, Inc.,

Se SIINIIUNIIIIIT sctissciesilactieciebinidiiniaisadiadinmeniisiimnnibaatinitnadiads 10

Lemon v. Kurtzman,

Se ee cicnccsnccanstininscnentionsicnnnininesneutntin passim

Levitt v. Committee for

Public Education & Religious Liberty,

Sy Ma UETTITE iccioscctesenbctsinisetenisiapinntibinibiaiiiiavadidiades 7, 10

Lujan v. Defenders of Wildlife,

ee SE niniicicsesinsaicinsiiiiannanennmnintndiiiasinidinn 5, 6, 7

Lynch v. Donnelly,

IE cicccsinciniasiniintintaieipinpeniinnitentinta passim

Marsh v. Chambers,

rs Sean acitninicnniinnsnncianbincintonsianieiaintidainninaiaie 26

McGowan v. Maryland,

ee TE cicecinsinsonniseguiniansennssunsanietsdtietd 15,21, 27

Meek v. Pittenger,

ee ee criccinscnieniiccnesencinnespinenionniatidiniinininiia 10

Metzl v. Leininger,

Pe a Se cecinrssctninsennnenattintinemeninnsies 21

Mueller v. Allen,

ee Se rntesiscancsccsenersininnsenetenebinntentcsnsniie 10, 26

Roemer v. Board of Public Works, a

Se cctsstcacnciesensiinmniasnincnninntanidisaneiieaes 26

Vil

TABLE OF AUTHORITIES (Cont.)

Page(s)

Santa Fe Independent School District v. Doe,

Se iticnirtcntesemnicnnameninaanenn 19, 20

Schlesinger v. Reservists Committee to Stop the War,

Fe Se iinitcenineaiintinininiinitinienioceaiannineuniies 7,8

School Dist. of Abington Township v. Schempp,

ee iiicitsntssidicniainansianinianinnsenntcdesmunnnianiinn 28

Steel Co. v. Citizens for a Better Environment,

ee ei ccnenipisasininiittiatniannsintdieneseneanienianiits 5, 6,7

Stone v. Graham,

eR Be iatidnevticecensnnsiniasitiennimmntsin 10, 15, 16, 24

Tilton v. Richardson,

I ee re re i itciensetascnninistisemineninapeianaciipeninia 10, 27

Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc.,

Ss ee seciinsinssnenticisinincintiinnincimantenatnineian 7,8

Wallace v. Jaffree,

Se Ss ee cctencnscscecstvavtcimetunentionenanciom 9,10, 11,14

Walz v. Tax Commission,

ey ee cicentennnnnsicssiiimsitniniimmnncinnsvenimiii 27

Warth v. Seldin,

a a ee eteencssnctestintennsninicnniiinnsinniiigiiieianne 5

Widmar v. Vincent,

ey i rececsteccnnentevstirenscssenicanneanertnenninitones 10

Witters v. Washington Dep't. of Services for the Blind,

I a ciseencsensoinenaginsessicntinninentnentenn 10, 26

Wolman v. Walter,

Sel isisascsnsisscenittinaptapeinmienintiensiiicinemienéa 10

Vili

TABLE OF AUTHORITIES (Cont.)

Page(s)

Zelman v. Simmons-Harris,

EE a Rr Oe ees 10, 26

Zobrest v. Catalina Foothills School Dist.,

ee sect diciecitheeetiinitinitienecasintaittasuandieaitn 26

Statutes

Ey Sia cceciicatisieaitdeertiteiiianaiatninseeanatinieaniatiiiiaiea eee te 6

Other Authorities

ee Se Oe IID cccecesiscnsnsescesncanenetinntennianiinesiatins 17, 23, 24

Rules

i ee aierinciteitsicainnibintisiniisinaiipiiitiipscadigttnatatasies! l

No. 03-1693

IN THE

Supreme Court of the United States

McCRrEARY COUNTY, KENTUCKY, ET AL.,

Petitioners,

Vv.

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 ASHBROOK CENTER FOR PUBLIC

AFFAIRS AND OHIO SENATOR BILL HARRIS IN SUPPORT OF

PETITIONERS

INTEREST OF AMI 1

The Ashbrook Center for Public Affairs (“Ashbrook Center”)

is an educational organization located at Ashland University in

Ashland, Ohio. For over twenty years the Ashbrook Center has

taught the meaning and significance of America by providing a

-forum for the study, research, and discussion of the principles and

! This brief is filed with the written consent of petitioners, and in accordance with

the global consent letter filed by respondents with this Court. Pursuant to

Supreme Court Rule 37.6, amici state that no counsel for any party authored this

brief in whole or in part, nor did any person or entity, other than amici, their

members, or their counsel make a monetary contribution to the preparation or

submission of this brief.

2

practices of the American government. Consistent with this

mission, the Ashbrook Center advocates the defense of individual

liberty, limited constitutional government, and civic morality. The

Ashbrook Center has a strong interest in protecting the historical

courthouse displays in McCreary County and Pulaski County, both

as educators and as advocates of the defendants’ constitutional

right to post public displays containing the Ten Commandments.

Senator Bill Harris represents Ohio’s 19" Senate District and

is President-Elect of the Ohio Senate. As a government actor,

Senator Harris recognizes the pivotal role that the Ten

Commandments played in the shaping of our nation. He therefore

joins the Ashbrook Center in urging this.Court to uphold the

constitutionality of the courthouse displays in McCreary County

and Pulaski County, Kentucky. Many government buildings

across the country, including some in Ohio, feature displays

containing the Ten Commandments. Senator Harris recognizes

that the lower courts are divided over whether and when displays

containing the Ten Commandments are permissible. He supports

the petitioners because he believes that the courthouse displays at

issue here do not violate the Establishment Clause.

SUMMARY OF THE A NT

The plaintiffs have failed to allege an injury sufficient to

confer standing. The complaints in the district court failed to

allege in concrete terms that any of the plaintiffs actually saw the

courthouse displays. Plaintiffs alleged only that they “have

occasion” to view the Ten Commandments, and thus failed to

allege a concrete and particularized injury. Additionally, plaintiffs

have alleged only that they are offended by the government’s

action because they believe that it is unconstitutional. That is

insufficient injury to establish standing under Article III.

Assuming arguendo that the plaintiffs have alleged an injury

sufficient to confer standing, the courthouse displays in McCreary

County and Pulaski County did not violate the Establishment

Clause. In fact, the courthouse displays easily pass constitutional

muster under the test set out by this Court in Lemon v. Kurtzman.

The McCreary County and Pulaski County courthouses included

the Ten Commandments in historical displays about the origins

and development of American law and government. In each

3

display, the Ten Commandments appeared inconspicuously among

a series of other historical documents. All of the other documents

or symbols in each display were purely secular. Each display

included a thematic explanation, informing viewers that the

display included documents that affected the American system of

law and government. Each display was only one of many

historical displays throughout each courthouse, which present

hundreds of different documents and demonstrate the defendants’

commitment to illustrating the heritage of America and the

Commonwealth of Kentucky.

Defendants offered a legitimate secular purpose for the

displays — celebrating the foundations of our ‘egal system and

government — and this secular purpose was entitled to deference.

The Sixth Circuit clearly erred in finding that the purpose was a

sham, and applied an erroneous legal standard by requiring

defendants to demonstrate a predominantly secular purpose for the

displays. The Sixth Circuit also misapplied governing law and

gave undue weight to the alleged unconstitutionality of earlier

displays at the courthouses.

The inclusion of the Ten Commandments in the courthouse

displays did not have the effect of promoting religion. No

reasonable observer could conclude that the government endorsed

religion simply by including the Ten Commandments in a ¢iverse

display about the history of American law and government. In

each courthouse, the Ten Commandments appeared on a single

piece of paper, and were surrounded by other documents that

played a role in the development of the law and in our nation’s

history and heritage, such as the Magna Carta and the Declaration

of Independence. This Court has permitted displays containing

even purc'y religious symbols, such as nativity scenes, so long as

the display as a whole does not have the effect of endorsing

religion. That principle is even more applicable here, where the

displays emphasized the secular impact of the Ten

Commandments on American law and presented them in a way

that was historically accurate. Nothing in the Establishment

Clause or this Court’s jurisprudence requires the omission of the

Ten Commandments from a historical presentation about the

origins of American law. a

4

ARGUMENT

I. Plaintiffs Have Not Alleged Sufficient Injury to

Establish Article III Standing.

As an initial matter, plaintiffs have not alleged a sufficient

injury to confer standing under Article III. Although the parties

did not raise the issue of standing before the Sixth Circuit, this

Court will raise the issue of standing sua sponte when it appears

that plaintiffs have failed to allege an injury in fact. See FW/PBS,

Inc. v. City of Dallas, 493 U.S. 215, 230-231 (1990) (“Although

neither side raises the issue [of standing] here, we are required to

address the issue even if the courts below have not passed on it. . .

and even if the parties fail to raise the issue before us.”) (emphasis

added).?

As a voluntary membership organization, the American Civil

Liberties Union (“ACLU”) has standing to bring a case if there is

an alleged injury to one of its members. A voluntary membership

organization has standing to sue on behalf of its members when

“(a) its members would otherwise have standing to sue in their

own right; (b) the interests it seeks to protect are germane_to the

organization’s purpose; and (c) neither the claim asserted nor the

relief requested requires the participation of individual members in

the lawsuit.” Hunt v. Washington State Apple Adver. Comm'n,

432 U.S. 333, 343 (1977). The question remains, however,

whether the individuals on whose behalf the ACLU has brought

suit, or any of the named plaintiffs, have standing to sue in their

own right. Plaintiffs here have failed to allege an injury sufficient

to confer standing under Article III.

In order to satisfy the “case or controversy” requirement under

Article Ill, a plaintiff must demonstrate (1) that he or she has

2 When defending a prio: set of displays before the district court, defendants

unsuccessfully argued that the plaintiffs lacked standing to pursue these actions

because they had not alleged “injuries in fact.” See ACLU of Kentucky v. Pulaski

County, 96 F. Supp. 2d 691, 694 (E.D. Ky. 2000); ACLU of Kentucky v.

McCreary County, 96 F. Supp. 2d 679, 682 (E.D. Ky. 2000) (“McCreary I’).

The district court’s brief analysis of the issue did not address the arguments put

forth by amici above.

5

suffered an “injury in fact;” (2) a causal relationship between the

injury and the challenged conduct; and (3) that the injury will be

“redressed by a favorable decision.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992). A plaintiff must establish

that he has “such a personal stake in the outcome of the

controversy as to warrant his invocation of federal-court

jurisdiction and to justify exercise of the court’s remedial powers

on his behalf.” Warth v. Seldin, 422 U.S. 490, 498-99 (1975)

(internal quotations omitted). Mere allegation of “injury” will not

suffice — the injury must be “concrete and particularized,” and

“actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan,

504 U.S. at 560; see also Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 103 (1998).

Plaintiffs here have failed to allege a “concrete” or “actual”

injury. In their complaints, plaintiffs made vague assertions

regarding potential injuries possibly occuiring during their

performance of various civic duties. The language in the

complaints is noticeably general and oblique, without a clear

statement that any plaintiff actually saw the disputed displays:

[Plaintiffs] must use their courthouse to transact

civic business, such as obtaining and renewing

licenses, registering property, paying local taxes

and registering to vote. When transacting this

civic business, they have occasion to view the Ten

Commandments display in their courthouse.

Complaint at 4 15, McCreary I, 96 F. Supp. 2d 679 (E.D. Ky.

2000) (Case No. 99-507) (emphasis added); Complaint at 4 15,

Pulsaki County, 96 F. Supp. 2d 691 (E.D. Ky. 2000) (Case No. 99-

509) (emphasis added). Plaintiffs then expressed their personal

views about the constitutionality of the displays: “Each plaintiff

perceives this Ten Commandments display as a violation of the

Constitution .... Each plaintiff therefore is offended by the

continued display and by having to view this display when

transacting civic business in the [McCreary and Pulaski] County

courthouse[s].” Complaint at § 19, McCreary I, 96 F. Supp. 2d

679 (E.D. Ky. 2000) (Case No. 99-507); Complaint at 4 19,

Pulsaki County, 96 F. Supp. 2d 691 (E.D. Ky. 2000) (Case No. 99-

509). Plaintiffs’ sworn verifications (attached to the complaints

6

pursuant to 28 U.S.C. § 1746) added no information, but merely

asserted that the allegations were true.

The complaints did not allege in straightforward terms that the

plaintiffs actually saw either display, but rather claimed that they

“have occasion” to view the displays when visiting the

courthouses. Does the phrase “have occasion” mean that the

plaintiffs have the opportunity to view the Ten Commandments?

Does it mean that they may see the displays at some indefinite

point in the future? That they definitely will see the displays when

they eventually fulfill their civic duties? The complaints before

district court were so impossibly vague and non-descript that no

one can know for certain. Whatever it means, however, such

amorphous allegations are not sufficient to establish standing.

“Such ‘some day’ intentions — without any description of concrete

plans, or indeed even any specification of when the some day will

be — do not support a finding of the ‘actual or imminent’ injury

that our cases require.” Lujan, 504 U.S. at 564.

The complaints were facially inadequate because no plaintiff

specifically claimed to have visited either courthouse, let alone to

have actually seen the displays. Plaintiffs claimed that they “must

use” the courthouses, but did not even claim to have fulfilled the

civic duties (e.g., paying taxes) that allegedly required their

presence at the buildings. Not a single plaintiff stated that these

civic duties — if they had been fulfilled - would have required him

or her to go into an area of a courthouse where either of the

displays was posted. Presumably, if any of the plaintiffs had seen

the displays, the complaints could have said so in plain,

unambiguous language. Plaintiffs’ vague, generalized, and

uncertain claims were not “concrete,” and they did not allege any

“particularized” or “actual” injury. See Lujan, 504 U.S. at 560;

Steel Co., 523 U.S. at 103. Alleging a concrete injury is a duty of

each plaintiff who seeks relief in federal court, and the murky

language in the complaints simply does not suffice under Article

III. -

Plaintiffs’ lack of standing was not cured by the consolidated

amended complaint, curiously filed a month after the district court

rendered its decision. The only material change in the amended

complaint (for purposes of standing) is the asserion that “[w]hen

transacting this civic business,” several of the plaintiffs “have had

:

occasion” to view the displays. See Consolidated Amended

Complaint at J 28, 29, ACLU of Kentucky v. McCreary County,

145 F. Supp. 2d 845 (E.D. Ky. 2001) (“McCreary IT’) (Case Nos.

99-507, 99-508, 99-509). This belated attempt by plaintiffs to

establish past injury, rather than speculative future injury,

underscores the insufficiency of the original complaints. Even so,

the amended complaint still fails to meet the requirements of

Article III. Like its predecessors, the amended complaint fails to

allege that any particular plaintiff actually saw one of the displays.

The nuance between “have occasion” and “have had occasion” is a

distinction without a difference because neither statement sets

forth a sufficiently concrete or particularized injury. See Lujan,

504 U.S. at 560; Steel Co., 523 U.S. at 103.

In addition to the lack of a firm factual nexus between

plaintiffs and the disputed conduct, the proffered basis for the

alleged injury is plainly insufficient. The complaints offered the

following assertion of an injury:

Each believes in the “separation of church and

state” .... Each plaintiff believes that religious

freedom can best be preserved if government

remains strictly neutral towards religion... .

Each plaintiff perceives this Ten Commandments

display as a violation of the Constitution... .

Each plaintiff therefore is offended by the

continued display .. ..

Complaint at J 16-19, McCreary I, 96 F. Supp. 2d 679 (E.D. Ky.

2000) (Case No. 99-507); Complaint at FJ 16-19, Pulsaki County,

96 F. Supp. 2d 691 (E.D. Ky. 2000) (Case No. 99-509).

Such “injuries” do not confer standing. “This Court

repeatedly-has rejected claims of standing predicated on ‘the right,

possessed by every citizen, to require that the Government be

administered according to law.’” Valley Forge Christian College

v. Americans United for Separation of Church and State, Inc., 454

U.S. 464, 482-83 (1982) (quoting Baker v. Carr, 369 U.S. 186,

208 (1962) (internal citation omitted)); see also Schlesinger v.

Reservists Committee to Stop the War, 418 U.S. 208, 216-22

(1974); Laird v. Tatum, 408 U.S. 1, 13 (1972); Ex parte Levitt, 302

U.S. 633, 634 (1937). It is clear that the Article III requirements

8

of standing “are not satisfied by ‘the abstract injury in

nonobservance of the Constitution asserted by . . . citizens.’”

Valley Forge, 454 U.S. at 482 (quoting Schlesinger, 418 U.S. at

223 n.13); see also id., 454 U.S. at 485-86 (holding that plaintiffs

“fail[ed] to identify any personal injury suffered by them as a

consequence of the alleged constitutional error, other than the

psychological consequence presumably produced by observation

of conduct with which one disagrees,” and that “(t]hat is not an

injury sufficient to confer standing under Art[icle] III, even though

the disagreement is phrased in constitutional terms”).

Il. The Constitution Does Not Prohibit the Inclusion of

the Ten Commandments in Historical Displays on

Government Property.

In Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), this

Court articulated a flexible framework for evaluating whether

governmental conduct passes muster under the Establishment

Clause.2 The Lemon test requires a court to determine that (1) the

challenged government action has a secular purpose; (2) the

action’s primary effect neither advances nor inhibits religion; and

(3) the action does not foster an excessive entanglement with

religion. /d. at 612-13. A governmental action “violates the

Establishment Clause if it fails to satisfy any of these prongs.”

Edwards v. Aguillard, 482 U.S. 578, 583 (1987). The Sixth

Circuit affirmed the district court on the basis of the first prong.

Judge Clay, writing only for himself, suggested that the

courthouse displays would violate the second prong as well. Each

conclusion is incorrect.

The Sixth Circuit’s determination regarding the purpose of the

courthouse displays is clearly erroneous and is based on an

incorrect legal standard directly at odds with the prior decisions of

this Court. Judge Clay’s determination regarding the effects prong

3 Amici join Judge Ryan in doubting the continued efficacy of the Lemon test,

which, as he noted in dissent, has been criticized by six current members of this

Court. See McCreary III, 354 F.3d at 464 (Ryan, J., dissenting). Nonetheless,

amici recognize that Lemon was controlling on the lower courts in this case, and

believe that the courthouse displays survive a properly-applied analysis under

Lemon.

9

is also incorrect, and relies upon an improper application of

governing law. Including the Ten Commandments in a historical

display about the foundations of secular law and institutions does

not have the purpose or effect of promoting religion, and does not

violate the Establishment Clause.

A. The Courthouse Displays Had a Secular Purpose.

1. The Sixth Circuit Applied an Erroneous Legal

Standard in its Analysis of the Defendants’

Purpose for Posting the Courthouse Displays.

The Sixth Circuit applied an erroneous legal standard when it

concluded that the courthouse displays lacked a secular purpose.

According to the panel, “[t]o satisfy this prong of the Lemon test,

Plaintiffs must show that Defendants’ predominate purpose for the

displays was religious.” ACLU of Kentucky v. McCreary County,

354 F.3d 438, 446 (6th Cir. 2003) (“McCreary IIT’) (emphasis

added); see also id. at 447 (“We agree . . . that the predominate

purpose of the displays was religious.”); id. at 454 (“[T]he district

court correctly concluded that Defendants’ primary purpose was

religious.”) (emphasis added). This “predominate purpose” or

“primary purpose” standard is not the correct standard, and is

neither required nor permitted by this Court’s decisions.

Government action will be invalidated under the purpose

prong only if it is entirely motivated by a religious purpose. In

Lynch v. Donnelly, this Court held that the purpose prong of the

Lemon analysis is satisfied so long as the government can

articulate “a” secular purpose. “The Court has invalidated

legislation or governmental action on the ground that a secular

purpose was lacking, but on/y when it has concluded there was no

question that the statute or activity was motivated wholly by

religious considerations.” Lynch v. Donnelly, 465 U.S. 668, 680

(1984) (emphasis added). This Court has reiterated the rule from

Lynch a number of times. In Wallace v. Jaffree, for example, the

Court stated that an action violates the first prong of Lemon only

where the action is “entirely motivated by a purpose to advance

religion.” Wallace v. Jaffree, 472 U.S. 38, 56 (1985) (emphasis

added). The courts may invalidate a statute or government action

“only if it is motivated wholly by an impermissible purpose.”

Bowen v. Kendrick, 487 U.S. 589, 602 (1988) (emphasis added).

10

This Court has found a secular purpose for governmental

action ina host of prior cases. Most notably, this Court upheld the

display of a nativity scene (with Santa Claus and other secular

symbols) in Lynch, 465 U.S. at 681. “Almost invariably, we have

effortlessly discovered a secular purpose for measures challenged

under the Establishment Clause, typically devoting no more than a

sentence or two to the matter.” Edwards, 482 U.S. at 613 (Scalia,

J., dissenting). See, e.g., Zelman v. Simmons-Harris, 536 U.S.

639, 649 (2002); Witters v. Washington Dep't of Services for the

Blind, 474 U.S. 481, 485-486 (1986); Grand Rapids School

District v. Ball, 473 U.S. 373, 383 (1985); Mueller v. Allen, 463

U.S. 388, 394-395 (1983); Larkin v. Grendel's Den, Inc., 459 U.S.

116, 123-124 (1982); Widmar v. Vincent, 454 U.S. 263, 271

(1981); Committee for Public Education & Religious Liberty v.

Regan, 444 U.S. 646, 654, 657 (1980); Wolman v. Walter, 433

U.S. 229, 236 (1977) (plurality opinion); Meek v. Pittenger, 421

U.S. 349, 363 (1975); Committee for Public Education &

Religious Liberty v. Nyquist, 413 U.S. 756, 773 (1973); Levitt v.

Committee for Public Education & Religious Liberty, 413 U.S.

472, 479-480, n. 7 (1973); Tilton v. Richardson, 403 U.S. 672,

678-679 (1971) (plurality opinion); Lemon, 403 U.S. at 613. In

the few cases where this Court has struck down laws under the

Establishment Clause for lack of secular purpose, it has done so

only where the government’s sole purpose was to promote

religion, or the proffered secular purpose was so overshadowed by

the religious purpose that it was tantamount to no secular purpose

at all. See Edwards, 482 U.S. at 585 (“appellants have identified

no clear secular purpose”); Wallace, 472 U.S. at 56-57, 60; Stone

v. Graham, 449 U.S. 39, 41(1980) (finding that “Kentucky’s

statute requiring the posting of the Ten Commandments in public

schoolrooms had no secular legislative purpose”) (emphasis

added); Epperson v. Arkansas, 393 U.S. 97, 103 (1968); see also

Lynch, 465 U.S. at 680 (describing Stone and Epperson as cases in

which this Court invalidated laws “motivated wholly by religious

considerations”).

The Sixth Circuit was unable to conclude that the displays

were motivated by wholly religious considerations. Instead, the

court applied its own erroneous “predominate purpose” standard,

which the court derived from its incorrect reading of Justice

O’Connor’s concurrence in Lynch. In Lynch, Justice O’Connor

11

stated that the secular purpose requirement is not satisfied “by the

mere existence of some secular purpose, however dominated by

religious purposes.” Lynch, 465 U.S. at 690-91 (O’Connor, J.,

concurring). “The proper inquiry,” according to Justice

O’Connor, “is whether the government intends to convey a

message of endorsement or disapproval of religion.” Jd. at 691.

The Sixth Circuit has relied on Justice O’Connor’s

concurrence for the proposition that defendants’ actions violate the

Establishment Clause where their primary purpose is non-secular.

See McCreary III, 354 F.3d at 446, 447, 454; see also ACLU of

Ohio v. Ashbrook, 375 F.3d 484, 491 (6th Cir. 2004); Adland v.

Russ, 307 F.3d 471, 480 (6th Cir. 2002). That is not the standard

articulated by this Court in Lynch, 465 U.S. at 680, Wallace, 472

U.S. at 56; or Bowen, 487 U.S. at 602. Nor does it adequately

capture the statements made by Justice O’Connor in Lynch. It is

one thing to find, as the Sixth Circuit did in this case, that

“Defendants’ primary purpose was religious.” McCreary III, 354

F.3d at 454. It is something altogether different to find that

defendants’ actions were “dominated by religious purposes,” or

were intended to endorse religion. Lynch, 465 U.S. at 690-91

(O’Connor, J., concurring). As explained below, including the

Ten Commandments as part of a larger historical display does not

evince an intent to endorse religion.

2. The Content and Context of the Displays

Demonstrate a Secular Purpose.

The defendants articulated a legitimate secular purpose for

including the Ten Commandments in a historical display about the

origins of law and government. This secular purpose for

displaying the Ten Commandments closely parallels the legitimate

purpose for displaying religious symbols recognized by this Court

in Lynch. If the Constitution permits the inclusion of a religious

symbol to depict the origins of Christmas, then surely the

Constitution permits the inclusion of a religious symbol to depict

the origins of our secular law.

The defendants maintained that their purpose was to display

documents that impacted the development of American law and

government. Consistent with that secular purpose, the displays

exhibited foundational historical documents and patriotic texts and

12

symbols, including: (1) the Star Spangled Banner; (2) the

Declaration of Independence; (3) the Mayflower Compact; (4) the

Bill of Rights; (5) the Magna Carta; (6) the National Motto; (7) the

Preamble to the Kentucky Constitution; (8) the Ten

Commandments; and (9) Lady Justice. McCreary III, 354 F.3d at

443. The displays also included a document that provided an

explanatory theme, entitled “The Foundations of American Law

and Government Display.” That document explained that the

displays “contain[{] documents that played a significant role in the

foundation of our system of law and government.” /d.

The displays also included an explanation concerning the

inclusion of the Ten Commandments, and firmly placed the

Decalogue in the context of secular traditions:

The Ten Commandments have profoundly

influenced the formation of Western legal thought

and the formation of our country. That influence

is clearly seen in the Declaration of Independence,

which declared that, “We hold these truths to be

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

they are endowed by their Creator with certain

unalienable Rights, that among these are Life,

Liberty, and the pursuit of Happiness.” The Ten

Commandments provide the moral background of

the Declaration of Independence and _ the

foundation of our legal tradition.

McCreary III, 354 F.3d at 443 (citation omitted). The displays did

not draw undue attention to the Ten Commandments and did not

emphasize the religious nature of the Decalogue.

In the district court, the defendants articulated the animating

reasons for the displays and for the inclusion of the Ten

Commandments. The defendants explained that the displays were

intended, among other things, to illustrate “that the Ten

Commandments were part of the foundation of American Law and

Government;” to provide 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

13

foundation of our system of law and government.” McCreary III,

354 F.3d at 446-47.

The validity of displaying the Ten Commandments in this

manner flows naturally from this Court’s decision in Lynch v.

Donnelly. In Lynch, this Court recognized a valid secular purpose

for including a nativity scene — an indisputably religious symbol —

in a holiday display with Santa’s house and sleigh, reindeer,

candy-striped poles, and the like. This Court did not evaluate the

nativity scene in isolation, but rather considered the entire display

as a whole. When “viewed in the proper context,” the inclusion of

a religious symbol with secular symbols did not evince an intent to

promote religion. Lynch, 465 U.S. at 680. Importantly, this Court

also validated the inclusion of a religious symbol because it

depicted the origins of the holiday:

The City . . . has principally taken note of a

significant historical religious event long

celebrated in the Western World. The créche in

the display depicts the historical origins of this

traditional event long recognized as a National

Holiday. . . . The display is sponsored by the City

to celebrate the Holiday and to depict the origins

of that Holiday. These are legitimate secular

purposes.

Id. at 680-81.

Like the nativity scene in Lynch, the Ten Commandments

appeared in the context of broader displays that predominantly

included secular documents and _ symbols. The Ten

Commandments also reflected the “historical origins” of the law in

a clear, unmistakable manner. If the Constitution permits the

display of a créche to celebrate and reflect the origins of

Christmas, then surely the Constitution permits the display of the

Ten Commandments to celebrate and reflect the origins of the law.

3. The Sixth Circuit Incorrectly Applied Controlling

Precedent from this Court.

The government’s assertion of a legitimate secular purpose is

entitled to deference, unless the proffered purpose is merely a

sham. Edwards, 482 U.S. at 586-87; see also Wallace, 472 U.S. at

14

74 (O’Connor, J., concurring). The Sixth Circuit and district court

found that the defendants’ stated purpose in posting the displays

was a “sham,” and concluded that the defendants included the Ten

Commandments for predominantly religious reasons. See

McCreary III, 354 F.3d at 446-47; McCreary IT, 145 F. Supp. 2d

at 848-49. The Sixth Circuit rested its holding on a misapplication

of this Court’s precedent.

The Sixth Circuit gave insufficient weight to the full context

of the displays. The court barely mentioned the fact that

aj proximately 90% of each display was purely secular, or that the

title of the displays, “Foundations of American Law and

Government Display,” evinced a secular purpose. The court also

gave little weight to the explanatory signs that accompanied the

displays, which specifically stated the permissible secular purpose

of presenting documents that impacted American law and

government. Rather than focusing on the overall context of the

displays as a whole, the Sixth Circuit “plainly erred by focusing

almost exclusively” on the Ten Commandments. Lynch, 465 U.S.

at 680; see id. (noting that “[flocus[ing] exclusively on the

religious component of any activity would inevitably lead to its

invalidation under the Establishment Clause”).

Although the Sixth Circuit noted that the displays did not

unduly emphasize the Ten Commandments, the court nevertheless

rejected defendants’ proffered secular purpose because of the

“blatantly religious” content of the displays. McCreary III, 354

F.3d at 455. In its attempt to distinguish Lynch, the Sixth Circuit

seemingly held that the Ten Commandments are different in kind

than a nativity scene, at least for constitutional purposes: “The

displays do not present a ‘passive symbol’ of religion like a

créche, which, when accompanied by secular reminders of the

holiday season, has come to be associated more with the public

celebration of Christmas, rather than that holiday’s religious

origins.” Jd.

The Sixth Circuit ciearly misstated the holding in Lynch. The

Court in Lynch did not approve the display of a nativity scene

despite the “holiday’s religious origins,” as the circuit court

suggested. McCreary III, 354 F.3d at 455. To the contrary, the

Lynch Court squarely held that acknowledging the “origins” of the

holiday was a valid secular purpose, even if those origins were

15

religious. This Court upheld the display of the créche in Lynch

specifically because “celebrat[ing] the Holiday and . . . depict/ing/

the origins of that Holiday . . . are legitimate secular purposes.”

Lynch, 465 U.S. at 681 (emphasis added).

The court of appeals also incorrectly applied Lynch to the facts

of this case. The créche upheld in Lynch — a nativity scene

including the figures of Jesus, Mary, Joseph, angels, shepherds,

and kings — was neither more passive nor more secular than the

Ten Commandments. Unlike the Ten Commandments, the créche

is a purely religious symbol. See Lynch, 465 U.S. at 691

(O’Connor, J., concurring) (noting that the créche is “an

unarguably religious symbol”). The Lynch Court upheld the

government’s display of the créche, even though its sectarian

significance was not negated by the setting, because the defendant

had served a legitimate secular purpose by “tak{ing] note of a

significant historical religious event long celebrated in the Western

World.” Lynch, 465 at 680.

If anything, the principle in Lynch is even more compelling

when applied to this case. The Ten Commandments are not purely

religious, and played a significant role in the development of

secular law and institutions. See, e.g., Edwards, 482 U.S. at 593-

94 (stating that the Ten Commandments did not play an

exclusively religious role in the history of Western civilization);

Griswold v. Connecticut, 381 U.S. 479, 529 n.2 (1965) (Stewart,

J., concurring) (stating that most criminal prohibitions coincide

with the prohibitions contained in the Ten Commandments);

McGowan v. Maryland, 366 U.S. 420, 462 (1961) (Frankfurter, J.,

concurring) (“Innumerable civil regulations enforce conduct which

harmonizes with religious canons. State prohibitions . . . reinforce

commands of the decalogue.”); Stone, 449 U.S. at 45 (Rehnquist,

J., dissenting) (“It is equally undeniable . . . that the Ten

Commandments have had a significant impact on the development

of secular legal codes of the Western World.”). In any event, the

Decalogue is certainly not more sectarian than the figures of Mary,

Joseph, and Jesus in the nativity display permitted in Lynch, or the

18-foot Chanukah menorah upheld in County of Allegheny v.

ACLU, 492 U.S. 573 (1989).

The Sixth Circuit also gave excessive weight to selected

quotations from this Court’s decision in Stone v. Graham, 449

16 _

U.S. 39 (1980), which rejected a Kentucky statute requiring the

posting of the Ten Commandments, standing alone, in all public

schoolrooms. The circuit court relied on Stone for the proposition

that the Ten Commandments, unlike the nativity scene upheld by

this Court in Lynch, are an “active symbol of religion” because

several of the Commandments allegedly concern only the religious

duties of believers. McCreary III, 354 F.3d at 455 (citing Stone,

449 U.S. at 42). In particular, the court referenced the

Commandments mandating “worshipping the Lord God alone,

avoiding idolatry, not using the Lord’s name in vain, and

observing the Sabbath Day.” /d. (quoting Stone, 449 U.S. at 42).

Nothing in Stone requires the omission of the Ten

Commandments from a historical display. In fact, the Stone Court

expressly noted that the Ten Commandments could be “integrated

into the school curriculum, where the Bible may constitutionally

be used in an appropriate study of history, civilization . . . or the

like.” Stone, 449 U.S. at 42. That observation readily applies to

the displays at issue here. The Ten Commandments did not appear

alone, but rather were integrated with secular documents in an

educational display about secular law. In any event, a finding that

the Decalogue necessarily has some religious purpose is clearly

not the same as a finding that it serves a wholly religious purpose,

see Lynch, 465 U.S. at 680, or that the government intends to

convey a message of endorsement. See id. at 691 (O’Connor, J.,

concurring). Following Stone, this Court reiterated that the Ten

Commandments can serve both religious and secular purposes.

“[Stone] did not mean that no use could ever be made of the Ten

Commandments, or that the Ten Commandments played an

exclusively religious role in the history of Western Civilization.”

Edwards, 482 U.S. at 593-94.

The Sixth Circuit’s conclusion that several Commandments

concern only the “religious duties of believers” is questionable, if

not demonstrably false. While the Commandments themselves

concern religious duties, that does not mean that they cannot serve

a legitimate secular purpose within the context of a broader

historical display. The Sixth Circuit failed to address the historical

evidence cited by the defendants in their initial appellate brief,

which noted that “[t]welve of the thirteen original colonies

adopted the entire Decalogue into their civil and criminal laws.”

17

Initial Brief of Appellants at 19, McCreary III, 354 F.3d 438 (6th

Cir. 2003) (Case No. 01-5935). Defendants also offered examples

of the enactment into law of each Commandment by one or more

of the colonies or states. See id. at 20-30. The Sixth Circuit

simply failed to confront the evidence of the role that the first four

Commandments played in the development of American law.

That error is critical when one considers that defendants’ stated

secular purpose was to post a historical display presenting

significant influences on American law. Indeed, as Judge

Batchelder recently noted in dissent from another Sixth Circuit

case with nearly identical facts, the “oft-reneated truism that the

first three or four Commandments are ‘exclusively religious’ is

simply not true. Including these rules as part of a historical

display about the development of American law is accurate,

appropriate . . . and legally permissible.” See Ashbrook, 375 F.3d

at 507 (Batchelder, J., dissenting). Even putting aside this

historical debate, the Sixth Circuit clearly gave undue emphasis to

four of the Ten Commandments, which comprised less than half of

one document in a much larger overall display.

4. The Sixth Circuit Erroneously Scrutinized the

Historical Accuracy of the Displays.

Rather than focusing on the full context of the displays, the

Sixth Circuit scrutinized the accuracy of the prefatory description

of the Ten Commandments, which stated, in relevant part:

The Ten Commandments have profoundly

influenced the formation of Western legal thought

and the formation of our country. That influence

is clearly seen in the Declaration of Independence

.... The Ten Commandments provide the moral

background of the Declaration of Independence

and the foundation of our legal tradition.

McCreary III, 354 F.3d at 451.

According to the court, this explanation presented two

problems. First, the court stated that “the evidence [that the Ten

Commandments influenced Western legal thought] does not

appear in the actual display . . . so an observer would not actually

be made aware of these facts.” Jd. at 452. This is wholly

18

irrelevant to the question of defendants’ purpose. Whether an

observer is aware of the historical connection between the Ten

Commandments and the law is a completely separate question

from what defendants’ motivations were in posting the displays.

Indeed, this Court upheld the display of a créche in Lynch without

requiring any explanatory documents whatsoever. See Lynch, 465

U.S. at 671.4 Nothing in this Court’s case law requires any

explanatory sign at all — let alone the extensive historica! exegesis

required by the Sixth Circuit in this case — in order to demonstrate

defendants’ purpose. Whether the displays could have been more

thorough, or could have better explained the impact of the Ten

Commandments, is completely distinct from the question of

whether the displays were motivated by a religious purpose.

Second, the court went to great lengths to demonstrate that the

Ten Commandments did not inspire the drafting of the Declaration

of Independence. See McCreary III, 354 F.3d at 452-53. The

Sixth Circuit repeatedly noted the lack of a “single historical

source in support of the proposition that the Ten Commandments

inspired the drafting of the Declaration of Independence.” /d. at

453. That claim, however, was not made in either display. The

displays made a much more modest assertion, stating only that the

Ten Commandments provided the “moral background” of the

Declaration and of our legal tradition. Nor would it be dispositive

if the explanatory docustents had made the claims of which they

were accused. Even assuming arguendo that the Sixth Circuit’s

reading of history is correct, the accuracy of the displays is a

‘separate and distinct issue from the defendants’ purpose in posting

them. As its moniker indicates, the “purpose prong” of the Lemon

test focuses on defendants’ motivations, not on the relative

educational merits of viewing the displays. Indeed, as Judge Ryan

noted in dissent, “the source of Thomas Jefferson’s ‘belief in

divinely bestowed unalienable rights’ proclaimed in the

Declaration of Independence is utterly immaterial, because it does

4 This Court's failure to require an explanatory plaque in Lynch was certainly not

because the Court had not considered the issue. Indeed, in his dissent from

Lynch, Justice Brennan suggested that he would have required such a document.

“[T]he City has done nothing to disclaim government approval of the religious

significance of the créche . . . Pawtucket has made no effort whatever to provide

a... cautionary message.” Lynch, 465 U.S. at 706-07.

19

not resolve the real issue before us today, which is whether the

defendants’ avowed secular purposes are shams.” /d. at 468 (Ryan,

J., dissenting). The issue before the court was whether the

government posted the displays for the sole purpose of endorsing

religion. The answer to that question is “no.”

5. The Sixth Circuit Erred in Finding that the

“Evolution” of the Displays Demonstrates a Non-

Secular Purpose.

Both the district court and the court of appeals made much of

the fact that the defendants changed the content of the displays

several times, ostensibly for the purpose of making them

permissible under the Establishment Clause. Because the initial

displays consisted of the Ten Commandments standing alone, the

courts inferred that the earlier displays had “imprinted the

defendants’ purpose . . . with an unconstitutional taint.” McCreary

III, 354 F.3d at 457 (quoting McCreary II, 145 F. Supp. 2d at

850). According to the court of appeals, this permanent taint

“strongly indicate[s] that the primary purpose was religious.” Jd.

at 458.

The lower courts’ assumption of unconstitutional “taint” is

simply not supported by the case law. The Sixth Circuit relied

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

290 (2000), for the proposition that prior noncompliance with the

Establishment Clause had to be considered in determining whether

the defendants’ courthouse displays were constitutional. See

McCreary III, 354 F.3d at 455-56. Nothing in Santa Fe, however,

requires the result reached by the circuit court. Although the

Santa Fe majority considered the text and history of the school

policy at issue in that case, the Court also made clear that the

policy was, in faci, invalid on its face. “[T]he text of the [] policy

alone reveals that it has an unconstitutional purpose.” Santa Fe,

530 U.S. at 314 (emphasis added).

The factual differences between the policy at issue in Santa Fe

and the dispiays at issue here are so great as to render any

comparison irrelevant. In Santa Fe, the plaintiffs challenged a

school district practice that permitted students to deliver

invocations and benedictions at graduation ceremonies and at

football games. In the face of litigation, the district altered the

20

policy several times, ultimately arriving at a policy that permitted

students to vote on whether they wanted to have a student-led

“invocation and/or message” at football games, and if so, who

should give the invocation or message. See id. at 298 and n.6.

The policy remained substantially unchanged from its original

version. In this case, however, the displays at issue have changed

significantly. Initial displays consisted of only framed copies of

the Ten Commandments. McCreary II, 145 F. Supp. 2d at 846. A

second set of displays added secular documents, such as excerpts

from the Congressional Record, which contained references to the

role of religion in American life. See McCreary I, 96 F. Supp. 2d

at 684. After the district court enjoined those displays, id. at 691,

defendants posted additional displays, ultimately arriving at the

“Foundations of American Law and Government Displays.” The

current displays contain numerous secular documents — without

religious references — and are accompanied by explanatory

documents setting forth their secular purpose. They bear little

resemblance to their predecessors. Whereas the final policy

analyzed by this Court in Santa Fe was little more than a recycled

version of earlier unconstitutional policies, the displays at issue

here are significantly different from the initial courthouse displays

and do not evince a facially religious purpose.*

Under the McCreary analysis, the government can seemingly

never cure the unconstitutionality of its prior conduct. This simply

cannot be the case, unless we are to assume that all constitutional

violations continue in perpetuity. “[G]Jovernmental bodies, like

other litigants, should be free to take instruction from prior

decisions or arguments, and thus to eschew, or move away from,

5 The Sixth Circuit also incorrectly applied that circuit’s own case law regarding

the effects of past conduct. The court relied heavily upon selected quotes from

Adland v. Russ, 307 F.3d at 480, for the proposition that defendants’ earlier

policies or practices demonstrate a non-secular purpose for defendants’ present

actions. See McCreary II], 354 F.3d at 456. In contrast to the McCreary panel,

however, the Adland court specifically stated that the defendants could cure their

constitutional defects by changing the composition of the display. “While we

cannot pass on the merits [of proposals to amend the display], we are

nevertheless confident that with careful planning and deliberation . . . the

Commonwealth can permissibly display the monument in question.” /d. at 490.

The McCreary court not only ignored this language but in fact incorrectly relied

on Adland for the opposite conclusion.

21

practices that are contrary to law.” ACLU of Kentucky v.

McCreary County, 361 F.3d 928, 933 (2004) (Boggs, C.J.,

dissenting). Indeed, for exactly this reason, the Third Circuit,

Seventh Circuit, and (before this case) the Sixth Circuit have

explicitly rejected such arguments. See ACLU of New Jersey v.

Schundler, 168 F.3d 92, 105 (3d Cir. 1999) (“The mere fact that

Jersey City’s first display was held to violate the Establishment

Clause is plainly insufficient to show that the second display

lacked a secular legislative purpose . . . .”) (quotation omitted);

Granzeier v. Middleton, 173 F.3d 568, 574 (6th Cir. 1999)

(holding that the state defendants could continue with the Good

Friday holiday closing by adopting a secular rationale for the

closing); Metzl v. Leininger, 57 F.3d 618, 623-24 (7th Cir. 1995)

(same). As the Sixth Circuit itself stated in Granzeier v.

Middleton, “the fact that a particular [policy] was once

constitutionally suspect does not prevent it from being reinstated

in a constitutional form.” Granzeier, 173 F.3d at 574.

This Court’s jurisprudence also undermines the inference of

an improper religious intent based on prior conduct. In McGowan

v. Maryland, 366 U.S. 420 (1961), a group of defendants charged

with violating Maryland’s “Sunday closing laws” challenged the

laws as an unconstitutional establishment of religion. This Court

acknowledged that “the original laws which dealt with Sunday

labor were motivated by religious forces,” id. at 431, but

nevertheless upheld the laws because they had later taken on a

secular purpose. The McGowan Court explicitly rejected the

reasoning that underlies the Sixth Circuit’s theory of

“unconstitutional taint.”

The present purpose and effect [of Sunday closing

laws] is to provide a uniform day of rest for all

citizens .... To say that the States cannot

prescribe Sunday as a day of rest for these

purposes solely because . . . such laws had their

genesis in religion would give a constitutional

interpretation of hostility to the public welfare

Id. at 445.

22

The lower courts’ imputation of unconstitutional taint is also

incongruous with this Court’s holding in County of Allegheny v.

ACLU, 492 U.S. 573 (1989). Although that case was decided on

the “effects” prong of the Lemon analysis, it is instructive in the

present discussion of purpose as well. The Allegheny Court

invalidated the government’s display of a créche on a courthouse

staircase but allowed the public display of an 18-foot menorah as

part of a larger display in front of the city-county building. As the

Third Circuit has pointed out, “not one Justice took the position

that the officials’ miscalculation regarding the Grand Staircase

tainted the decision concerning the City-County Building.”

Schundler, 168 F.3d at 105 n.12. If a display is not tainted by a

contemporaneous unconstitutional display, then surely a display is

also not tainted by a materially dissimilar prior display.

B. Including the Ten Commandments in the Courthouse

Displays Did Not Have the Effect of Endorsing

Religion.

The Sixth Circuit limited its holding to the conclusion that the

defendants had a non-secular purpose for posting the Ten

Commandments, and did not reach the effects prong of the Lemon

test. See McCreary III, 354 F.3d at 462 (Gibbons, J., concurring)

(“I express no opinion as to whether the displays violate the

‘effect/endorsement’ prong of the Lemon test.”); id. at 479 (Ryan,

J., dissenting) (“[T]he opinions of my brother, Judge Clay, on this

issue, are his own and do not represent those of the majority of the

panel.”). The courthouse displays survive scrutiny under the

effects prong as well because no reasonable observer could

conclude that the inconspicuous inclusion of the Ten

Commandments in a historical display amounted to government

endorsement of religion.

In evaluating the effects prong of the Lemon test, courts apply

the “endorsement test” first articulated by Justice O’Connor in her

concurring opinion in Lynch, see 465 U.S. at 690, and later

embraced by this Court’s decision in Allegheny. The key question

is whether a “reasonable observer” would conclude that the

government had endorsed religion by allowing the challenged

practice. See Allegheny, 492 U.S. at 592-94; Capitol Square

Review and Advisory Board v. Pinette, 515 U.S. 753, 780 (1995)

(O’Connor, J., concurring). While there is always someone who

23

might perceive a particular action as an endorsement of religion,

that person does not personify the reasonable observer. “A State

has not made religion relevant to standing in the political

community simply because a particular viewer of a display might

feel uncomfortable.” Pinette, 515 U.S, at 780; see also Good

News Club v. Milford Central School, 533 U.S. 98, 119 (2001)

(stating that “the endorsement inquiry is not about the perceptions

of particular individuals or saving isolated nonadherents from . . .

discomfort”) (quoting Pinette, 515 U.S. at 779-80 (O’Connor, J.,

concurring)). To the contrary, a court’s analysis of the display

must be grounded “in reality,” see Lynch, 465 U.S. at 678, and

must avoid “a stilted over-reaction contrary to our history and to

[this Court’s] holdings.” Jd. at 686.

A reasonable observer could not conclude that the government

endorsed religion by including the Ten Commandments in broad

historical displays about the foundations of American law and

government. In each of the displays, the Ten Commandments

appeared on a single, normal-sized sheet of paper. Each display

also included the text of the entire Star Spangled Banner, the

Declaration of Independence, the Mayflower Compact, the Bill of

Rights, the Magna Carta, the National Motto, the Preamble to the

Kentucky Constitution, a printed image of Lady Justice, and an

explanatory sign identifying the foregoing documents and stating

that the display presented “documents that played a significant

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

McCreary III, 354 F.3d at 443. As the Sixth Circuit recognized,

“the displays did not provide undue physical emphasis to the Ten

Commandments. . . . [they] appeared on a single piece of paper,

the same size as that containing the secular documents.” Jd. at

454.

Visitors to either courthouse encounter several other large

historical displays which provide additional context to the displays

at issue here. In the McCreary County courthouse, there are

hundreds of historical documents displayed throughout the

building, including 58 in the judge’s office, 41 in the waiting

room, 124 near the side entrance to the courthouse, 33 in the fiscal

courthouse, and 28 in the conference room. See Initial Brief of

Appellants at 7, McCreary III, 354 F.3d 438 (6th Cir. 2003) (Case

No. 01-5935). The Pulaski County courthouse posted similar

24

displays throughout the building. /d. Visitors to either courthouse

pass numerous other displays which demonstrate to observers the

defendants’ strong commitment to illustrating the rich historical

heritage of both America and the Commonwealth of Kentucky.

The Ten Commandments simply do not confront visitors to either

courthouse in a manner that could lead a reasonable non-adherent

to question his or her standing in the political community. See

Lynch, 465 U.S. at 688 (O’Connor, J., concurring).

The district court’s orders in this case put the defendants in a

no-win situation. Prior displays were enjoined because they

allegedly focused too much on religion, and the religious message

was not sufficiently diluted by purely secular documents. See

McCreary I, 96 F. Supp. 2d at 689. The present displays were

enjoined, however, specifically because the Ten Commandments

were surrounded by purely secular documents and symbols:

The composition of the current set of displays

accentuates the religious nature of the Ten

Commandments by placing them alongside

American historical documents. . . . The

reasonable observer will see one religious code

placed alongside eight political or patriotic

documents, and will understand that the counties

promote that one religious code as being on a par

with our nation’s most cherished secular symbols

and documents. This is endorsement.

McCreary Il, 145 F. Supp. 2d at 851. Judge Clay adopted this

reasoning in its entirety. See McCreary III, 354 F.3d at 459.

No display containing the Ten Commandments could survive

scrutiny under these shifting standards. A display that is not

sufficiently diluted by secular documents will be too religious,

McCreary I, 96 F. Supp. 2d at 689, but a display that incorporates

secular documents will “accentuate[] the religious nature of the

Ten Commandments.” McCreary III, 354 F.3d at 459 (quoting

McCreary II, 145 F. Supp. 2d at 851). Applying these

contradictory rules enabled the lower courts to effectively

establish a per se rule against any display containing the Ten

Commandments — a rule explicitly rejected by this Court. See

Edwards, 482 U.S. at 593-94 (“[Stone] did not mean that no use

25

could ever be made of the Ten Commandments . . . .”); Lynch, 465

U.S. at 678 (“[A]n absolutist approach in applying the

Establishment Clause is simplistic and has been uniformly rejected

by the Court.”). This has not gone unnoticed even by other judges

sitting in the same district where this case originated: “(NJeither

the Constitution nor Stone impose such a would-be constitutional

straightjacket . . . for governments legitimately wishing to display

a document having great secular influence on the development of

our laws... .” ACLU of Kentucky v. Mercer County, 219 F. Supp.

2d 777, 791 (2002).

The government does not endorse religion by acknowledging

the role of religion and religious symbols in secular society. Like

the nativity scene in Lynch, the display of the Ten Commandments

at issue here did not endorse religion. In Lynch, this Court held

that a nativity scene, surrounded by secular objects and symbols,

did not confer a substantial and impermissible benefit on religion.

See Lynch, 465 U.S. at 681-82. The Court approved its inclusion

in the broader holiday display, “notwithstanding the religious

significance of the créche.” Jd. at 687. In her concurrence, Justice

O’Connor found “clearly erroneous” the district court’s holding

that “the City’s use of an unarguably religious symbol ‘raises an

inference’ of intent to endorse.” Jd. at 691 (O’Connor, J.,

concurring). Even though the sectarian significance of the nativity

was not negated by the setting, the composition of the overall

display made the government’s use of the créche no more an

endorsement of religion than such acknowledgments of religion as

legislative prayers or the opening of court sessions with “God save

the United States and this honorable court.” Jd. at 693 (O’Connor,

J., concurring). The same principle should apply here, where the

Ten Commandments were posted along with numerous secular

documents and the composition of the overall displays did not

endorse religion.

This Court’s decision in County of Allegheny v. ACLU also

supports the conclusion that a reasonable observer would not

perceive the courthouse displays as a government endorsement of

religion. In Allegheny, this Court allowed the public display of an

18-foot menorah as part of a larger “Salute to Liberty” display.

See Allegheny, 492 U.S. at 582. In doing so, this Court

specifically noted that the menorah has both religious and secular

26

significance: “The menorah, one must recognize, is a religious

symbol . . . But the menorah’s message is not exclusively

religious.” /d. at 613. Like the menorah in Allegheny, the Ten

Commandments are “not exclusively religious,” but rather have

both religious and secular aspects, and were presented as parts of

larger displays that emphasized their secular impact on our

society. The principle derived from Allegheny is even more

compelling in the present case. The 18-foot menorah permitted by

this Court was accompanied by a Christmas tree and a sign

saluting _ liberty. In the courthouse displays, the Ten

Commandments were accompanied by many more secular

documents and symbols, all linked by a common secular theme

that was clearly spelled out in their title and explanatory

documents.®

This Court has upheld numerous other governmental policies

and acknowledgements of religion that provide far greater benefit

to religion than any incidental benefit from the displays here. See,

e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (upholding a school

voucher program even though majority of participating students

had enrolled in religiously-affiliated schools); Zobrest v. Catalina

Foothills School Dist., 509 U.S. 1 (1993) (upholding a federal

program that permitted sign-language interpreters to assist deaf

children enrolled in religious schools); Witters, 474 U.S. 481

(upholding a vocational scholarship program that provided tuition

aid to a student studying at a religious institution to become a

pastor); Marsh v. Chambers, 463 U.S. 783 (1983) (upholding a

state legislature’s practice of opening each legislative day with a

prayer by a chaplain paid by the state); Mueller, 463 U.S. 388

(upholding a program authorizing tax deductions for educativnal

expenses even though 96% of the beneficiaries were parents of

children in religious schools); Roemer v. Board of Public Works,

426 U.S. 736 (1976) (allowing non-categorical grants to church-

© The inclusion of the Ten Commandments in the courthouse displays was unlike

the display of the nativity scene rejected by this Court in Allegheny. The Court

invalidated the government's display of a créche standing alone on a courthouse

staircase because “nothing in the context of the display detracts from the créche’s

religious message.” Allegheny, 492 U.S. at 598. That is completely inapposite to

the present case, where the Ten Commandments were included in a much larger

display that emphasized their role in the development of secular institutions.

27

sponsored colleges and universities); Tilton, 403 U.S. 672

(permitting federal grants for college buildings of church-

sponsored institutions); Walz v. Tax Commission, 397 U.S. 664

(1970) (upholding tax exemptions for church properties); Board of

Education v. Allen, 392 U.S. 236 (1968) (permitting the

expenditure of public funds for textbooks supplied to students

attending church-sponsored schools); Everson v. Board of

Education, 330 U.S. 1 (1947) (allowing the expenditure of public

funds for transportation of students to church-sponsored schools).

Surely there is no greater aid to religion deriving from the

historical displays in the McCreary County and Pulaski County

courthouses than from these policies that do not violate the

Establishment Clause. See also Lynch, 465 U.S. at 681-82. Any

benefit to religion from the courthouse displays was “indirect,

remote and incidental,” and therefore constitutional. See id. at

683.

It would be patently unreasonable to conclude that the

courthouse displays “send[{] a message to nonadherents that they

are outsiders, not full members of the political community.” /d. at

688 (O’Connor, J., concurring). The courthouse displays did not

compel belief or acquiescence, or command participation in any

form of religious exercise. They did not assert a preference for

one religious denomination over others, or promote religion over

non-religion, or involve the state in the governance of any church.

See ACLU of Ohio v. Capitol Square Review and Advisory Board,

243 F.3d 289, 299-300 (6th Cir. 2001); see Elk Grove Unified

School District v. Newdow, 124 S.Ct. 2301, 2333 (2004) (Thomas,

J., concurring) (stating that a policy comports with the

Constitution where “the State has not created or maintained any

religious establishment” and the policy “does not expose anyone

to the legal coercion associated with an established religion”). Far

from promoting one religion over another, or promoting religion

over non-religion, the purpose of the displays was merely to

illustrate historical documents that played a significant role in the

development of American law and government. The Decalogue

undeniably was one such influence. See, e.g., McGowan, 366 U.S.

at 462 (Frankfurter, J., concurring) (“Innumerable civil regulations

enforce conduct which harmonizes with religious canons. State

prohibitions . . . reinforce commands of the decalogue.”). The

Establishment Clause surely does not require the omission of

28

religious material from a historical narrative, especially when the

religious material indisputably played a role in the development of

secular institutions.

Ill. Conclusion.

Justice Goldberg found it necessary to remind us more than 40

years ago that “[nJeither government nor this Court can or should

ignore the significance of the fact that . . . many of our legal,

political and personal values derive historically from religious

teachings.” School Dist. of Abington Township v. Schempp, 374

U.S. 203, 306 (1963) (Goldberg, J., concurring). Plaintiffs here

would have this Court do exactly that. Fortunately, “the

Establishment Clause permits government some latitude in

recognizing and accommodating the central role religion plays in

our society.” Allegheny, 492 U.S. at 657 (Kennedy, J., concurring

in part and dissenting in part) (quoting Lynch, 465 U.S. at 678)).

Petitioners Jimmie “sreene and Darrell BeShears displayed

small, unobtrusive copies of the Ten Commandments in their

courthouses, as part of a series of documents and symbols that

were accurately described as significant influences on the

development of our law and government. The Establishment

Clause does not require the omission of religious material from a

historical narrative or preclude any mention of religious influences

on our legal and political heritage. It is not, and has never been,

unconstitutional to make observations of historical fact or to

acknowledge the role played by religion in civic life. The Sixth

Circuit erroneously determined that including the Ten

Commandments in a secular historical display evidenced an intent

to establish religion, and should be reversed.

PETER W. SCHRAMM

EXECUTIVE DIRECTOR,

ASHBROOK CENTER FOR

PUBLIC AFFAIRS

401 College Ave

Ashland, OH 44805

(419) 289-5413

SENATOR BILL HARRIS

PRESIDENT-ELECT,

OHIO SENATE

Ohio Statehouse

Columbus, OH 43215

(614) 466-8086

Dated: December 8, 2004

29

Respectfully submitted,

STEVEN C. SEEGER

Counsel of Record

LARRY J. OBHOF

KIRKLAND & ELLIS LLP

200 East Randolph Drive

Chicago, IL 60601

(312)861-2000

(312) 861-2200 Facsimile