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

EP NO a a

~ § supreme Coun, U.S-

' i: |

; ! JAN ? ~ 2005

J !

renee ae OF THE CLERK

No. 03-1693

In The

Supreme Court of the United States

+

McCCREARY COUNTY, KENTUCKY.

Petitioner,

VS.

AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY,

Respondent.

On Petition For Writ of Certiorari

To The United States Court of Appeals For The

Sixth Circuit

+

BRIEF OF AMICI CURIAE

ATHEIST LAW CENTER et al.,

IN SUPPORT OF RESPONDENT

PAMELA L. SUMNERS* LARRY DARBY

528 N. Humphrey Ave. P.O. Box 3905

Oak Park, IL 60302 Montgomery, AL 36109

708.763.9827 334.270.8223

* COUNSEL OF RECORD

Counsel for Amici Curiae

i

TABLE OF CONTENTS

ee, rn ee ys

I. THE COURT’S “REASONABLE OBSERVER” Is

[EARNED IN THE LAW BUT NOTA STUDENT

OF REALISM, AND HE SHOULD BE RETIRED

Il. THE REASONABLE OBSERVER STANDARD

DEVALUES NONADHERENTS AND

OVERVALUES “HISTORY” ................

Ill. |THE REASONABLE OBSERVER STANDARD Is

INSUFFICIENTLY SENSITIVE TO THE

SYMBOLIC UNION OF CHURCH AND STATE

WORKED By PUBLIC DISPLAYS ...........

IV. JUSTICE STEVENS HAS PROPOSED A BETTER

APPROACH THAN THE REASONABLE

OBSERVER STANDARD...................

RRR sos oh kventeeccuessdineleee

13

21

TABLE OF AUTHORITIES

Abington Sch. Dist. v. Schempp.

ee 7

ACLU v. Ashbrook,

375 F.3d 484 (6th Cir. 2004) 2. ....00.0.... 26

ACLU vy. City of Plattsmouth.,

358 F.3d 1020 (8th Cir. 2004) 2.0 ...00.... 23

ACLU v. McCreary County,

361 F.3d 928 (6th Cir. 2004) .......... 24,25

Adland v. Russ. .

307 F.3d 471 (6th Cir. 2002) ....... 23.24.26

Agostini v. Felton.

a ee

American Jewish Cong. v. City of Chicago,

$27 F.2d 120 (7th Cir. 1987) .......... 17, 25

Books v. City of Elkhart.

235 F.3d 292 (7th Cir. 2000) .......... 24, 26

Bowers v. Hardwick.

EPO ov vw cc veccveccnccecss 20

Cap. Sq. Rev. Bd. v. Pinette,

TD oc bc cesses ese ssececes 14

County of Allegheny v. ACLU.

re passim

Edwards v. Aguillard.

ee 18

Engel v. Vitale.

OUND 5 as obo euesceserccece 4

Everson v. Bd. of Educ..

Eo ca vec h yb eee veers seces 5

Glassroth v. Moore.

335 F.3d 1282 (11th Cir. 2003) ........... 12

Harris v. City of Zion,

927 F.2d 1401 (7th Cir. 1987) ............ 26

Indiana CLU v. O'Bannon,

259 F.3d 766 (7th Cir. 2001) .......... passim

Lawrence v. Texas,

IE Ee 20

Lemon v. Kurtzman,

EE OE dst ice sesesevess 18

Lynch v. Donnelly,

eee passim

McCreary County v. ACLU of Kentucky,

354 F.3d 438 (6th Cir. 2004) .......... passim

Mitchell v. Helms,

Ee 16

Newdow v. United States Cong. (Newdow 1),

292 F.3d 597 (9th Cir. 2002) ............. 14

Sch. Dist. of Grand Rapids v. Ball,

OD occ éseccceeeesces 5, 16

Stone v. Graham,

Ne dink eo 4ee seen e604 28

Van Orden v. Perry,

351 F.3d 173 (5 Cir. 2004) ........... passim

Wallace v. Jaffree,

i PD oo ibe kb decece sees 5,19

West Virginia Bd. of Educ. v. Barnette,

DUD U.S. G24 (IDES) 2. cc cccccccees 12, 15, 29

Zorach v. Clauson,

Pee GA PP ENOOED ccccccccceces. .. 13,14

i\

Constitutional Authorities

SF Ga POUL Who oes ekanedvcuneeees passim

Other Authorities

Samuel Butler. Erewhon Revisited. XIV... 2... ik

Murray Edelman, The Symbolic Uses of Politics

Bg Se re ee passim

S. Padover. The Complete Madison (1953) .........- 3

John EF. Thompson, What's the Big Deal?

The Unconstitutionality of God in the Pledge

of Allegiance. 38 Harv. C.R.-C.L.L. Rev.

ne. ara ce cea eaeee eens 13. 14

Alexis de Tocqueville. Democracy in America,

SI aa ag ha a ea a 18

Lawrence Iribe. American Constitutional Law

Oe | er 14

Charles Gregory Warren. No Need to Stand on

Ceremony: The Corruptive Influence of

Ceremonial Deism and the Need for

Separationist Reconfiguration of the

Supreme Court's Establishment Clause

Jurisprudence. 54 Mercer L. Rev. 1669

re ear ee ne penne 15. 16

INTEREST OF THE AMICI CURIAE'

The Atheist Law Center, which coordinated

representation of all amici here, is a nonprofit Alabama

corporation whose mission is educational and legal

advocacy on behalf of citizens who espouse no religious

belief. When Alabama Chief Justice Roy Moore erected a

5,.280-pound granite Decalogue in the rotunda of the

Alabama Judicial Building and indicated that doing so was

homage to the foundations of American law, the Center

requested to display a model of an atom to symbolize the

contributions of rationality and Enlightenment philosophy

to American law and was refused. The Center is joined by

Alabama amici Pat Cleveland, president of the Alabama

Freethought Association, who was involved in 1990s

federal and state cases challenging then-circuit judge Roy

Moore’s sectarian courtroom prayer and Decalogue display

over the judicial bench; Michael Chandler, a DeKalb

County Baptist, parent, and school administrator who

challenged Alabama’s fourth school-prayer statute enacted

within a fifteen-year period; and Wayne and Sue Willis,

Jewish parents who challenged religious harassment and

Establishment Clause violations in rural Pike County,

where their children were the only Jews in the school

No counsel for any party had any role in authoring this brief,

and no persons other than the amici curiae and their counsel made

any monetary contribution to its preparation or submission. Written

consents from the parties to the filing of this brief are on file with the

Clerk. Amici also submitted a brief in the simultaneously pending

case of Van Orden v. Perry, this brief is substantially the same but

for additions in Part Ill.

i)

system.”

Other Alabama amici, who have followed with

alarm Alabama’s several well-publicized theocratic

flirtations over the past decade, are the Wiregrass Atheists,

the United Universists and the Birmingham Atheists

(formed in response to Chief Justice Roy Moore's

installation of the granite Decalogue). Amici Dallas-Fort

Worth Metroplex Atheists. North Texas Church of

Freethought in Dallas. Texas, and Camp Quest (a

Kentucky corporation that runs an atheist summer camp)

have a particular interest in this case since Decalogue cases

from their home states simultaneously pend here: Camp

Quest has a direct concern about the government property

in this very case.

These amici are joined by Scouting for All. which

seeks to influence the Boy Scouts of America (BSA) to

Stop discriminating on the basis of spiritual beliefs or

sexual orientation: Rob Sherman Advocacy of Chicago.

Illinois. whose founder has challenged BSA’s religious

oath and discrimination against atheists: Atlanta

Freethought Society: Unitarian Universalist Infidels; East

Bay Atheists (San Francisco); Atheist Station (Altoona.

These plaintiffs. who were represented by counsel of record

here. experienced community harassment that variously included

death threats, vandalism. and ostracism. Cleveland received

suspicious mail that necessitated law enforcement use of water

cannons: Chandler and his wife. also a teacher in DeKalb County,

were hounded into early retirement and their son endured taunting;

the Willis family’s children suffered assaults, offensive graffiti,

taunts, and forced participation in Christian activities before the

family decided to leave Alabama.

3

Pennsylvania); the Military Association of Atheisis and

Freethinkers; Minnesota Atheists; Boulder Heretics

(Colorado); the Secular Student Alliance; and the New

Orleans Secular Humanist Association. All of these amici

are nonprofit, humanist, atheist, or freethinker

organizations with regional or national membership

dedicated to strict separation of church and state. Amicus

EvolveFISH is a commercial concern which creates and

distributes symbols and materials in the U.S., with

particular emphasis on regions where church/state

violations have been most pronounced.

All amici have an interest in defending the principle

often articulated by this Court that the state may not favor

religion over irreligion. All oppose government action that

confers privilege on religious citizens and which renders

citizens who do not share dominant religious beliefs (or

any religious beliefs) “outsiders.” All subscribe to James

Madison’s warning that “it is proper to take alarm at the

first experiment on our liberties. We hold this prudent

jealousy to be the first duty of citizens.” The Complete

Madison 299-301 (S. Padover, ed. 1953) (quoting from

“Memorial and Remonstrance Against Religious

Assessments, 1785"). Amici offer this brief because this

case presents a danger of deviation from the cherished

principle that atheists, dissenters from majoritarian

compunctions to civic religion, freethinkers, humanists,

and infidels are “constitutional people” entitled to First

Amendment protections.

SUMMARY OF THE ARGUMENT

The Establishment Clause forbids government from

telegraphing to nonreligious citizens that they are less than

valued members of the political community. When the

state chooses to place religious symbols on public property.

particularly at the seat of government, its choices have the

expected effect of symbolically uniting the governmental

and religious messages.

The “reasonable observer” standard presently

employed to test for government endorsement of religion

fails to take account of the evocative power of symbols in

government's hands and fails to appreciate how religious

symbols can be used as cudgels against those who do not

subscribe to “mainstream” American religions or to any

religion at all. It rests on assumptions that undercut

Establishment Clause values and on false analogies.

The Court should abandon the reasonable observer

standard and adopt a strong presumption that displays on

public property that symbolically unite government and

religion are unconstitutional.

ARGUMENT

The Establishment Clause rests “on the belief that

a union of government and religion tends to destroy

government and degrade religion.” Engel v. Vitale, 370

U.S. 421. 431 (1962). It also tends to inject divisiveness

detrimental to the social good and antithetical to

constitutional guarantees of freedom of conscience. As the

Court has observed. “The centuries immediately before and

5

contemporaneous with the colonization of America had

been filled with turmoil, civil strife, and persecutions . . .”

Everson v. Bd. of Educ., 330 U.S. 1, 8-9 (1947). While

religion may provide “spiritual comfort, guidance, and

inspiration to many, it can also serve powerfully to divide

societies and to exclude those whose beliefs are not in

accord with particular religions or sects that have from

time to time achieved dominance.” Sch. Dist. of Grand

Rapids v. Ball, 473 U.S. 373, 382 (1985), overruled in part

on other grounds, Agostini v. Felton, 521 U.S. 203, 235

(1997).

But it is not only sectarian bullying that the

Establishment Clause proscribes. “[T]he individual

freedom of conscience protected by the First Amendment

embraces the right to select any religious faith or none at

all.” Wallace v. Jaffree, 472 U.S. 38, 52 (1985).

The Court’s recognition that government should not

use its bully pulpit for the benefit of an “elect” among the

faithful is plain in the language of its Lynch/Allegheny

regime, which commands the state not to “send[] a

message to nonadherents that they are outsiders, not full

members of the political community, and an accompanying

message to adherents that they are insiders, favored

members of the political community.” Lynch v. Donnelly,

465 U.S. 668, 688 (1984) (O’Connor, J., concurring). The

Establishment Clause “prohibits government from

appearing to take a position on questions of religious belief

or from ‘making adherence to a religion relevant in any

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

County of Allegheny v. ACLU, 492 U.S. 573, 495-96

(1989) (quoting Lynch, 465 U.S. at 687) (O’Connor, J.,

concurring).

The state’s appropriation and emplacement of

religious symbols telegraphs the theocratic chauvinism that

this Court has proscribed. In cases too numerous to cite,

this Court has proclaimed that government may not favor

religion over irreligion — and yet government Decalogues

proliferate.

Amici suggest that Decalogues proliferate because

the “ins” and “outs” dichotomy of Lynch/Allegheny is

undercut by the “reasonable observer” standard articulated

in those very cases — a standard that is insufficiently

respectful of nonadherents and which lends itself to levels

of abstraction and rationalization that militate against

effective Establishment Clause enforcement. = The

“reasonable person” standard ignores what we know of the

visceral way in which the populace responds to symbols

served to it by government, and is too amenable to

legitimating endorsements because it provides little more

than a silhouette to lower courts (merely instructing them

that an endorsement problem is “a legal question to be

answered on the basis of judicial interpretation of social

facts”). Lynch. 465 U.S. at 693-94 (O°Connor, J.,

concurring). It gives license to disregard the obvious

Lower courts as well as some Justices, scholars and

irreligious citizens may believe that Lynch and Allegheny broadly

legitimate state displays of religious symbols. In each, the Court

examined a Christian creche. In each, it applied largely the same

lest. And yet it struck one display while sustaining the other.

Allegheny itself. in examining a menorah and Christmas tree in

aadition to the creche, seemed to some members of the Court

internally inconsistent. The fact that the creche was struck in

7

import of the symbol itself as well as the dispositive fact

that government has incorporated it as government’s own

speech, on government property’ and instead to fixate on

the degree of congruence with a faulty analogy to a

museum and the phantom of “history.”

A different standard, which Justice Stevens has

suggested, would be more respectful of nonadherents and

in harmony with the proposition that the Establishment

Clause protects atheists no less than Baptists who

disapprove of prayer over school intercoms. A different

standard would indicate a practical appreciation of the way

in which governments deploy symbols and citizens

synthesize them. For ultimately, the process of sending

and receiving the message is the issue. Just as an

appropriate constitutional test demands that we distinguish

between real threat and mere shadow, Abington School

District v. Schempp, 374 U.S. 203 (1963) (Goldberg, J.,

concurring), it must also strictly police against displays that

forge a symbolic unity between religion and government.

Allegheny while the Christmas tree and menorah escaped scrutiny,

and the Christmas tree was even held to “secularize” the menorah,

mystified three dissenting Justices. See 492 U.S. at 638-46 (Brennan,

J., dissenting) (joined by Marshall and Stevens, JJ.). Justice Stevens

believed that the juxtaposition of the menorah and Christmas tree, far

from secularizing either symbol, reinforced the religious character of

both. /d. at 654-55 (Stevens, J., dissenting).

. Indeed, one wonders if “endorsement” is actually

descriptive of a scene in which government has incorporated a

religious symbol into a permanent display on its property.

8

l. THE COURT’S “REASONABLE OBSERVER”

IS LEARNED IN THE LAW BUT NOT A

STUDENT OF REALISM, AND HE SHOULD

BE RETIRED.

Pavlov, it seems. never met Pinette. Scholars of

politics. no less than of the arts, have taken note that all the

world’s a stage. As the pioneering political scientist

Murray Edelman has explained, the evocative power of

symbols in public settings results precisely from the fact

that government has ordained the content and provided the

stage:

The courtroom, the police station, the

legislative chamber, the party convention

hall. the presidential and even the mayoral

office, ... all have their distinctive and

dramaturgical features. planned by the

arrangers and actors in the event and

expected by their audiences ...

The common element in the political setiings

mentioned here and in others that could have

been mentioned is their contrived character.

They are unabashedly built up to emphasize

a departure from |peoples’] daily routine, a

special or heroic quality in the proceedings

they are to frame. Massiveness, ornateness

and formality are the most common notes

struck in the design of these scenes, and they

are presented upon a scale which focuses

9

constant attention upon the difference

between everyday life and the special

occasions when one appears in court, in

Congress, or at an event of historic

Significance.

We know something of the impact of the

manifestly contrived setting ..... Such

backgrounds make for heightened sensitivity

and easier conviction in onlookers, and the

framed actions are taken on their own terms.

... The creation of an artificial space or

semblance thus sets the stage for a

concentration of suggestions: of

connotations, of emotions, and of authority.

... Through the creation of an artificial

Space a particular set of impressions and

responses can be intensified, serving to

condense and organize a wide range of

connotations, free of the irrelevancies,

distractions, and qualifications of which

everyday life mainly consists.

The conspicuousness with which a

setting is presented for observation and

special attention in any social situation

defines the degree to which an audience is

being injected into an artificial universe or

semblance. The latter in turn makes easier

the functioning of evocative . . . symbolism

... and involves a corresponding divei-ion

of attention from cognitive and rational

10

analysis and manipulation of the

environment ... [C]ognitive manipulation of

the environment or of referential symbols

|will] produce a desired result ... [such as

putting the focus] upon abstractions that

powerfully grip emotions. [This is] not

because there is a demonstrable tie to

desired results, as in logical or mathematical

manipulation, but precisely because there is

no tie to consequences at all, no means of

verification. People are therefore free to

assure each other that the symbol means

what they all passionately want it to mean:

rain, fertility, a good crop, or another shared

need. ... Social suggestion, not individual

work and verification, becomes the stimulus

of activity, and what is suggested is implicit

in the setting.

Murray Edelman, 7he Symbolic Uses of Politics 95-98 (8th

ed. 1977).

Manipulation of symbols within governmental

settings is designed to: (1) impress a large audience (as

opposed to one-on-one persuasive discourse); (2)

legitimize future acts or policies of government,

maximizing the chances that citizens will acquiesce in the

rules they embody: and (3) establish or reinforce the

citizen's definition of himself through identification with

the polity or public officials. /d. at 98. Symbols of

majoritarian preference thus become seli-reifying. While

government is always making a calculation in choosing

1]

and staging symbols, the citizen’s response is more

primitive than cerebral, hinting that Justice Kennedy, as he

facetiously wondered if an Establishment Clause standard

could be derived from “intuition and a tape measure,” was

on to something. See Allegheny County, 492 U.S. at 675

(Kennedy, J., dissenting).

We do not hold court in meat-packing plants or

water parks, but rather in settings that amplify the

seriousness of the proceedings that occur there. “The

judicial bench and chambers, formal, ornate, permanent

and solid... ‘prove’ the deliberateness, scholarliness, and

judiciousness of the acts that take place in them, even [if]

careful study of some of these acts in a university or

newspaper office (different settings) may indicate they

were highly arbitrary, prejudiced, or casual.” Edelman,

supra, at 99.

In sum, settings for governmental action and

symbols used by government are not neutrally chosen and

are not meant to be innocuous. Careful staging of symbols

offers or reinforces government’s motivation. /d. at 101-

02. Symbols are, moreover, durable, replicating on

repeated exposure the same emotions they evoked on a

first viewing, so that the setting in which government

places a symbol is part of its effort to influence citizens’

value structures. /d. at 106.°

Many years before the Court had developed formal tests for

Establishment Clause analysis, it understood that symbols are

irresistible preceptorial tools for government, writing:

Symbolism is a primitive but effective way of

communicating ideas. The use of an emblem or

12

If this theory of why government chooses to control

not merely the message but also every nuance of the

medium is sound, this Court’s “reasonable person”

standard underestimates the potency of symbols by

overestimating the rationality of responses to them.

Symbolic recognition and actuation does not operate on the

cool plane of law where precedents, at least in theory, are

dispassionately weighed against the particular reindeer,

creche. and Christmas tree du jour. The Court's

reasonable observer is an abstraction considerably removed

from the masses who participate in cultural symbols

offered to them rather than merely passively and neutrally

filtering them. Such a standard is better understood as the

judiciary mirroring itself through the glass of precedent

flag to symbolize some system, idea, institution, or

personality is a shortcut from mind to mind. . . .

Symbols of State often convey political ideas just

as religious symbols come to convey theological

ones. Associated with many of these symbols are

appropriate gestures of acceptance and respect: a

bowed or barred head, a bended knee. A person

gets from a symbol the meaning he puts into it, and

what is one man’s comfort and inspiration is

another's jest and scorn.

West Virginia Bd of Educ. v. Barnette, 319 U.S. 624, 632-33

(1943). In the context of Decalogue displays, for example, just as

Alabama Chief Justice Roy Moore intended in installing a 5,280-

pound granite monument in the hushed marble rotunda of the

Alabama Judicial Building, cordoned off with red velvet, visitors

were moved to bow their heads or bend their knees and pray. See

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

13

than as a measure that accounts for an ordinary citizen’s

reality. At any rate, the standard the Court has chosen

permits capitulation to the state’s religious message far too

easily. This is strangely incongruous, since the Court at

the same time it purports to apply this standard recognizes

that people react emotionally far more than cerebrally to

symbols, that they react like “insiders” or “outsiders.” The

Court’s insider/outsider dichotomy captures a central value

of the Establishment Clause, even as the reasonable

observer standard steers clear of the viscera.

Il. THEREASONABLE OBSERVER STANDARD

DEVALUES NONADHERENTS AND

OVERVALUES “HISTORY.”

Ironically, the reasonable observer standard coexists

in cases in which the Court’s discussions reaffirm the

commitment to avoiding preference for religion, even

while the standard itself has pedigreed governmental

favoritism for America’s “mainstream” religions. See John

E. Thompson, What's the Big Deal? The

Unconstitutionality of God in the Pledge of Allegiance, 38

Harv. C.R.-C.L.L. Rev. 563 (2003). References to (one,

singular) God abound in the Court’s lexicon, thus

implicitly privileging monotheistic Christians and Jews as

a starting point. See, e.g., Zorach v. Clauson, 343 U.S.

306, 313 (1952).

Professor Tribe has wondered why the perspective

to be applied in the Lynch/Allegheny regime is that of the

reasonable “observer” rather than the reasonable

“nonadherent.” See Lawrence Tribe, American

Constitutional Law 1293 (2d ed. 1988). In fact the concern

14

for nonadherents expressed in Lynch and Allegheny is

undone by the adoption of the reasonable observer as the

benchmark of constitutionality. The nonadherent entitled

to constitutional solicitude by the lights of these very cases

is transformed by comparison to his “reasonable observer”

counterpart into a person of trifling concern whose

piddling grievances can be dismissed, and dismissed with

an epithet, at that. A person who objects to Decalogues,

Latin crosses, or other State religious promotions in core

government buildings. parks, or public schools can be

rejected as an “isolated” nonadherent who feels mere

“discomfort [at] viewing symbols of a faith to which [he]

does not subscribe,” Cap. Sg. Rev. Bd. v. Pinette, 515 U.S.

753. 779 (1995) (O°Connor, J., concurring); an

“uninformed” “heckler.” Van Orden v. Perry, 351 F.3d

173. 178 (Sth Cir. 2004). cert. granted, No. 03-1500, 2004

U.S. LEXIS 6691 (Oct. 12. 2004): “fastidious.” Zorach v.

Clauson, 343 U.S. at 313: or “fevered.” See Newdow v.

United States Cong. (Newdow 1), 292 F.3d 597, 614 (2002)

(Fernandez. J.. concurring in part and dissenting in part)

(individual opinion later withdrawn). Indeed, one wonders

if some of these cases contemplate that a nonadherent

could be reasonable.

Rejection of the “reasonable nonadherent” standard

posed by Professor Tribe has resulted in an endorsement

analysis that, ifnot uniformly prone to assailing atheists for

their febrile brains, is far too susceptible to majoritarian

taint. See Charles Gregory Warren, No Need to Stand on

Ceremony: The Corruptive Influence of Ceremonial Deism

and the Need for Separationist Reconfiguration of the

Supreme Court's Establishment Clause Jurisprudence, 54

15

Mercer L. Rev. 1669, 1712 (2003). Thus it is perfectly

natural that Justice Brennan, even in dissent in Lynch, took

it as a given that courts will have to struggle to disentangle

themselves from ingrained majoritarian habits of response

in order to declaim of municipal creches: “|1 ,his case

appears hard not because the principles of decision are

obscure, but because the Christmas holiday seems so

familiar and agreeable.” Lynch, 465 U.S. at 696 (Brennan,

J., dissenting).° Ironically, one of the reasons the Lynch

majority gave for rejecting a standard that would produce

a brighter line is a factor that grows more salient daily and

which should have cut the other way — the diversity and

pluralism of American society. /d. at 678.

Perhaps it is not entirely unsurprising that the

reasonable observer standard would legitimate the display

of a creche (Lynch), cf a menorah adjacent to a Christmas

tree so huge it dwarfed the menorah (Allegheny), and of a

Christmas tree itself (Allegheny). The Court undertook, it

said, to determine whether a reasonable observer would

find endorsement — not of a particular sect, but of religion

— but the question it actually posed to itself in Lynch was

whether displaying the creche would be perceived by its

reasonable observer as conferring a benefit on religion. /d.

at 683. Conferring a benefit is not, of course, the same

thing as giving an endorsement or intermingling the

The words recall those of Justice Jackson, who anticipated

the public opprobrium the Court would face in curtailing the

majority’s preference for a compulsory flag salute: “This case is

made difficult not because the principles of its decision are obscure

but because the flag involved is our own.” Barnette, 319 U.S. at 641.

16

messages of the government and the religious symbol.’

The Court concluded, having framed the question in these

terms. that no more “benefit” was conferred by placing a

creche in a city park than by allowing religiously themed

paintings to hang in state galleries. /d.

But framing the analysis in such terms not only

misses the point, but also trivializes the extent to which

adherence to a religious creed has been made relevant to

standing in the political community. The appropriate

question in a display case involves not “benefit” but rather,

the existence of the sort of symbolic unity between church

and state that the Establishment Clause proscribes.

Another way of saying this is in Lynch/Allegheny terms:

namely. the government cannot welcome only the

religiously inclined as citizen/insiders.

As Justice Brennan observed in his Lynch dissent:

The primary effect of including a nativity

scene in the city’s display is ... to place the

government's imprimatur... on the

particular religious beliefs exemplified by

the creche. Those who believe in the

a

The Court has very clearly distinguished between conferring

benefits such as aid to parochial schools and taking action that

symbolically links government and religion. That is the whole point

of post-Lynch cases such as Agostini, 521 U.S. at 227-32, partially

overruling Grand Rapids v. Ball, 473 U.S. 373, because Grand

Rapids had presumed that a financial benefit was coterminous with

symbolic union, and Mitchell v. Helms, 530 U.S. 793 (2000). In fact,

the “benefit” question is perfectly appropriate for school-aid cases

but quite jarring for any other species of Establishment Clause case.

17

message of the nativity receive ... .unique

and exclusive ... public recognition and

approval of their views. ... The effect on

minority religious groups, as well as those

who may reject all religion, is to convey the

message that their views are not similarly

worthy of public recognition nor entitled to

public support. It [is] precisely this sort of

religious chauvinism that the Establishment

Clause was intended forever to prohibit.

465 U.S. at 701. Justice Brennan concluded that “[t]o be

excluded on religious grounds by one’s elected

government is an insult and an injury.” /d. at 709. An

insult and injury to nonadherents would persist even if a

court were to determine that, as in Lynch, no “benefit” of

cognizable proportions was conferred on religion.

Simultaneously with its marginalization of

nonadherents, the reasonable observer standard invites

courts to exalt “history”—whatever they perceive it to be.

Even judges whose decisions favor religious displays

sometimes understand that the standard seduces some

courts into obscurantism. See, e.g., American Jewish

Cong. v. City of Chicago, 827 F.2d 120, 131 (7th Cir.

1987) (Easterbrook, J., dissenting) (“It would be appalling

to conduct litigation under the Establishment Clause as if

it were a trademark case, with experts testifying whether

one display is really like another. . . .””)

Judge Easterbrook might have wondered as much

about the uses of extrinsic forensic history in

Establishment Clause cases as about experts dueling over

18

reindeer-to-creche ratios. There is obviously nothing

wrong with, e.g., courts taking account of various

incarnations of the religion clauses that differed from

James Madison’s first draft. Straightforward historical

inquiry often yields straightforward answers. The problem

is that courts fail to realize that forensic history as used by

legal advocates has no resemblance to historical study as

practiced by scholars. The courts’ too-frequent indulgence

of deeply subjective “historical” analysis as part of the

reasonable observer inquiry proves the wisdom of Samuel

Butler's quip. “God cannot alter the past. historians can; it

is perhaps because they can be useful to Him in this respect

that He tolerates their existence.” Samuel Butler, Erewhon

Revisited XIV. Indeed, Butler might have noted that God

might have particular uses for historians in judicial robes.

The dissenting opinion in the case below typifies

the problem: after railing about Lemon v. Kurtzman’s

“purpose” prong as a means of “psychoanaly|zing]

legislators.” ACLU v. McCreary County, et al., 354 F.3d

438. reh'g en banc denied, 361 F.3d 928 (6th Cir. 2004),

it proceeds to cobble together a variety of anomalous or

elliptical remarks from Washington and Jefferson tending

to show their (or in Washington’s case, at least ghostwriter

Alexander Hamilton's) religiosity, notes that Congress in

1782 issued a Thanksgiving proclamation urging

supplication to the almighty, makes the obeisance required

of its genre to de Toqueville’s observation in Democracy

in America that Americans view freedom and Christianity

as linked, and swoops in for the coup de grace,

pronouncing (with no particular authority that would

withstand rabbinical or objective secular historians’

19

scrutiny) that the Ten Commandments played a

“foundational role in American law and government.” /d.

at 461-71 (Ryan, J., dissenting).

It scarcely matters if Washington’s farewell address

or Jefferson’s inaugural address extolled the virtues of

religion. This may tell us something about their private

views, or then again, it may tell us only about their political

instincts. One’s religious predilections and one’s

constitutional views may be entirely sepaiu‘e. Even if

every delegate to the Constitutional Convention were in the

habit of reading Exodus and Deuteronomy daily, it does

not follow that delegates would have seen no harm in

enshrining the Decalogue as national law. Even if Thomas

Jefferson borrowed Blackstone’s reference to “the Laws of

Nature and Nature’s God,” this hardly proves that

Jefferson was other than a Deist—it does not mean that he

would share, e.g., Roy Moore’s view of the Biblical

“Creator God” discussed in repetitive lawsuits involving

Mr. Moore--let alone that a phrase from the Declaration of

Independence in common use in 1776 has any bearing on

the Establishment Clause. Even if it were a fact that every

one of the Framers believed that Jesus is divine and that

those who disagree are hellbound, this would be irrelevant,

because the Establishment Clause could not countenance

this fact. See Allegheny, 492 U S. at 605 n.55 (quoting

Wallace v. Jaffree, 472 U.S. at 52).

Litigants as well as judges may invoke “history”

and original intent to suit the result they wish to reach;

“history” confers a patina of legitimacy on many dubious

claims. But such uses of history are polemical, not

scholarly. Claiming the mantle of history conveys an

20

impression that accurate and dispassionate archival work

has been undertaken and the truth has been excavated.

When shibboleths or nubbins of Jefferson's writings at

odds with his status as :uthor of the Virginia Statute for

Religious Freedom are repeated often enough by allegedly

impartial purveyors. their publicists hope that such

repetition will make them accepted truths, and that legal

and cultural understandings will be changed to reflect the

“new” historical “reality.“(See, e.g., Br. of the United

States at 7-16.) Since layer upon layer of apocryphal

sedimentation builds up each time one of these misleading

arguments is made, sooner or later the shifting sands of

myth, manufacture, or conjecture will take on the solidity

of stone. Grave-robbing and posthumous psychoanalysis

of persons long dead is a strange way to construe a law for

today. all the same.

Of course, those who call on history for justification

of majoritarian prejudices should not be surprised when

history answers. This Court’s decision in Lawrence v.

Texas. 539 U.S. 558 (2003), demonstrates the malleability

of “history.” Lawrence. in overruling a case decided just

17 years earlier, Bowers v. Hardwick, 478 U.S. 186 (1986),

also overruled a rationale that depended almost entirely on

what Bowers purported was an authoritative exegesis of

sodomy laws predating even Blackstone. Lawrence

concluded that Bowers was simplistic, that its “historical

premises [were] not without doubt and, at the very least,

[were] overstated.” Lawrence, 539 U.S. at 571. Thus, in

less than two decades. this Court’s own understanding of

history—history back to the time of Leviticus—was radically

rewritten.

21

iil. THE REASONABLE OBSERVER STANDARD

IS INSUFFICIENTLY SENSITIVE TO THE

SYMBOLIC UNION OF CHURCH AND

STATE WORKED BY PUBLIC tuis?LAYs.*

Nor are the defects of the “reasonable observer”

standard exhausted by discussion of its pejoration of

nonadherents and its susceptibility to manipulation in the

Amici by no means suggest that the separate Lemon test

should be overruled or modified. See Lemon v. Kurtzman, 411 U.S.

192 (1973). Indeed, amici note that courts often gloss past the part

of the “reasonable observer” standard that addresses “what viewers

may fairly understand to be the purpose of the display.” See

Allegheny, 492 U.S. at 522 (O’Connor, J., concurring) (emphasis

added). Lemon is a useful reminder that government's purpose

matters, and is particularly instructive for the two display cases

pending here: one in which government sought through retrospective

subterfuge to sanitize a display already ruled unconstitutional (this

case), and one in which a stone monument was erected as part of the

Fraternal Order of Eagles’ campaign to persuade governments to

outfit public parks and buildings with Ten Commandments plaques

and monuments, ostensibly to deter juvenile delinquency (instead of,

for example, to distribute juvenile justice codes in schools or to start

after-school programs) (Van Orden). Lemon probes governmental

motivations without distraction, and neither Lemon nor ancillary

cases dealing with sham purpose or government’s usage of a

religious symbol where a secular one would serve government’s

articulated purpose should be discarded. See, e.g., Edwards v.

Aguillard, 482 U.S. 578 (1987) (sham purpose); Lynch, 465 U.S. at

681 n.7 (Brennan, J., dissenting) (choice of religious means over

secular alternative). Assuming that there could be a display case in

which purpose were not an issue, however, the standard suggested in

Part IV of this brief would be easier to apply than Lemon, which after

all was not crafted in the display context but in a school-aid case.

22

hands of the forensic historiojurist. While some courts do

reach sound decisions even applying a standard that is both

tacitly freighted to favor religion and amorphous,’ the

decisional process can be tortuous.

The two Decalogue cases pending here should be

judged by the answer to the simple question of whether the

display works a symbolic union of government and

religion. This question does not require the cogitative

peregrinations demanded by the reasonable person

standard. The displays in each case are plainly

unconstitutional if the factor for which we are testing is

symbolic union that reinforces the faithful and alienates

everyone else. Cramped spelunking into ill-fitting museum

analogies and projection of majoritarian religious bias onto

the reasonable observer who functions as a judge-penitent

are distractions from this central question.

The dissimilarity in the physical arrangement of the

religious symbols in Van Orden and this case and the

differing results reached by the courts below highlight the

circuity of the reasonable observer route. The Van Orden

display is widely disaggregated, while the display here is

a congeries. The Fifth and Sixth Circuits, like their sister

circuits in other Decalogue cases, parsed the minutiae of

physical arrangements and tried to negotiate the

conundrum.

E.g., Indiana CLU vy. O'Bannon, 259 F.3d 766 (7th Cir.

2001). Notably, in addition to its reasonable observer analysis, that

court focused extensively on whether a planned | 1 ,500-pound stone

Decalogue would effect a “symbolic union of church and state”

signaling approval to adherents and disapproval to nonadherents. See

259 F.3d at 771-72.

23

In the cases whose physical settings most closely

resemble that of Van Orden,'° the courts have devoted

extended discussion to whether the setting is “museum-

like,” which quality legitimated Lynch’s creche. See 465_

U.S. at 676-77 (“The National Gallery in Washington,

maintained with Government support ... has long exhibited

masterpieces with religious messages. ...”). The analogy

was inapt in Lynch and remains so. Government museums

provide a forum for a variety of artistic representations

without endorsing any. A Dutch master’s work might hang

adjacent to a Russian icon or “The Last Supper” — or any

of these works could hang on a museum wall as its sole

adornment without sending a message of governmental

approval.

The court below noted the disparity in function

between a museum and a courtroom and cogently

explained another reason that the metaphor is anomalous.

Not coincidentally, these cases involve displavs in which the

Fraternal Order of Eagies persuaded government to dona.e public

space for the FOE’s gifts of Decalogues. See O'Bannon, 259 F.3d

766 (Decalogue monument to be placed on grounds of complex of

civic buildings spanning two acres and containing a dozen separately

spaced monuments); Ad/and v. Russ, 307 F.3d 471 (6th Cir. 2002),

cert. denied, 538 U.S. 999 (2003) (monument was to be placed on

Capitol grounds near other government buildings, near the road, and

was particularly prominent due to proximity of “floral clock”); ACLU

v. City of Plattsmouth, 358 F.3d 1020 (8th Cir. 2004), vacated by and

reh'g en banc granted by, 2004 U.S. App. LEXIS 6636 (8th Cir. Apr.

6, 2004) (Decalogue in large city park, not near government

buildings, and monument stood alone). The FOE’s campaign on

behalf of governmental Decalogue displays is detailed in the original

Plattsmouth opinion

24

Citizens come to courthouses to obtain enforcement of the

laws; they are rarely there other than “by necessity —

whether they are on trial for a crime, have been

subpoenaed as witnesses, are seeking to vindicate their

civil rights, have been called to jury duty or are simply

contesting parking tickets, registering to vote or renewing

their driver's licenses. County courthouses also exude a

coercive pressure, ranging from compulsory jury service to

bench warrants to judicial decrees.” 354 F.3d at 461.

Museums share none of these attributes.

The Seventh Circuit, considering the museum

analogy where various statues and monuments occupy not

city parks but core municipal buildings or grounds of

government offices, noted that even if a multiplicity of

statues rendered the grounds arguably “somewhat akin to

a museum,” any conclusion that this neutralized the

religious meaning of the Decalogue was wrong. It

concluded. “This is not some museum nestled in some

secluded park. The grounds, which house, among other

things, the Capitol, the Governor's office, the General

Assembly, the Indiana Supreme Court, and the Indiana

Court of Appeals, is the seat of Indiana government.”

O'Bannon, 259 F.3d at 772. Such “displays at the seat of

government [merit] particularly careful scrutiny” because

they “run|] a special risk of making religion relevant, in

reality or public perception, to status in the political

community.” /d. (citing Allegheny, 492 U.S. at 626

(O°’Connor, J., concurring)). Accord Adland, 307 F.3d

471. See also ACLU v. McCreary County, 361 F.3d 928,

932 (order denying rehearing en banc) (6th Cir. 2004);

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

25

American Jewish Cong. v. City of Chicago, 827 F.2d 120,

128 (7th Cir. 1987).

In Van Orden, the monument is not only on the

grounds of the seat of government, but it was approved by

the Fifth Circuit because it is “at a point on the direct line

between the legislative chambers, the executive office of

the governor, and the Supreme Court Building. It is

plainly linked with those houses of the law ...” 351 F.3d at

181. This, of course, is a significant reason that the

monument should not be sustained, as the Seventh Circuit

would have held on Van Orden’s facts, to judge from its

reasoning in O'Bannon.

Blatant symbolic conflation of divine law and man’s

law is prohibited. This conflation is also why the staging

of the Bill of Rights, a few documents from historical

figures or Congress referencing wholly religious matters,

and the Ten Commandments in a putative “Foundations of

law” display in courthouses and schoolhouses was rightly

prohibited by the panel below in McCreary.

Courts that instinctually reach toward the symbolic

union question as the heart of the matter recogi.’e that it

is not metaphors but effects that count. When government

deliberately places its own secular texts or symbols

prominently with religiows texts or symbols, it is not

constructing an innocuous exhibit that neutralizes the

message of the religious artifacts. Far from secularizing

the religious symbols, it is identifying the most cherished

emblems of its statehood with the religious message. See

McCreary, 354 F.3d at 460; O'Bannon, 259 F.3d at 773

(where Bill of Rights and Indiana Constitution’s Preamble

referencing “Almighty God” are placed with sacred texts,

26

this “signals that the state approve[s] of such a link and [is]

sending a message of endorsement”); Books, 235 F.3d at

307 (FOE Decalogue topped by American eagle gripping

the national colors in its talons symbolically equates

government and religion and is thus an endorsement);

ACLU vy. Ashbrook, 375 F.3d 484, 494 (6th Cir. 2004)

(“[b]y placing the Decalogue in apparent equipoise with

the Bill of Rights” the state creates the impression that it

equates civil law with a divine code); Adland, 307 F.3d

471 (monument on Capitol grounds featuring American

flag in the eagle’s talons along with the Decalogue, Chi

and Rho, and the all-seeing eye of Providence

impermissibly links government and religion); Harris v.

City of Zion, 927 F.2d 1401, 1412 (7th Cir. 1987) (Latin

cross surrounded by symbols of city on municipal seal

forged symbolic link between Christianity and

government). The cases just referenced reached the right

results because they, unlike Van Orden, asked the right

question.

IV. JUSTICE STEVENS HAS PROPOSED A

BETTER APPROACH THAN THE

REASONABLE OBSERVER STANDARD.

As explained above, the reasonable observer

standard tempts courts to ask the wrong questions and

ratifies implicit biases toward “mainstream” monotheistic

religions. It is, moreover. so unstructured that it confuses

those who must apply it. Of A//egheny's counterintuitive

conclusion that one religious symbol could secularize

another in the reasonable observer’s eyes, Justice Brennan

remarked:

27

| do not know how we can decide whether it

was the tree that stripped the religious

connotations from the menorah, or the

menorah that laid bare the religious origins

of the tree. ... But | shudder to think that the

only ‘reasonable observer’ is one who shares

the particular views on perspective, spacing,

and accent expressed in [the majority’s]

opinion, thus making analysis under the

Establishment Clause look more like an

exam in Art 101 than an inquiry into

constitutional law.

492 U.S. at 643 (Brennan, J., dissenting).

Justice Stevens has proposed a baseline rule that

respects core Establishment Clause values and which

would inject clarity. He would “create a strong

presumption against the display of religious symbols on

public property.” Allegheny, 492 U.S. at 650 (Stevens, J.,

dissenting). This presumption would “prohibit a display

only when its message, evaluated in the context in which

it is presented, is nonsecular.” /d. at 652.'' In other words,

_ This formulation is perhaps more permissive than Justice

Brennan's would have been. See id. at 637 (Brennan, J., dissenting)

(“I continue to believe that the display of an object that ‘retains a

specifically Christian’ [or other] religious meaning ... /,

incompatible with the separation of church and state demanded by

the Constitution”) (internal citations omitted); id. at 643 (stating that

the Court's recognition that “the menorah is a religious symbol”

“should have been the end of the case”). While e™ici agree with

Justice Brennan, they realize that the Court is unlikely to ao so here.

28

Justice Stevens would ask whether the religious and civil

messages are impermissibly linked. His presumption

would screen for the symbolic union the Constitution

forbids, leaving unmolested friezes that commemorate not

great proselytizers but great lawgivers even if Moses is

depicted among them, id. at 652-53, while it would

proscribe “a carving of Moses holding the Ten

Commandments, if that is the only adornment on a

courtroom wall.” /d. at 652. His presumption would also

proscribe a courtroom carving of Moses, Confucius and

Mohammed because such a display would honor religion

as surely as would the erection of a “Latin cross on the

roof of city hall.” /d.

Justice Stevens’ suggestion should not be rejected

out of hand as “hostile to religion,” because as just

demonstrated, it is hostile only to endorsements of religion,

which should be unobjectionable. Justice Stevens’

presumption would be raised only in the display arena; it

would not bar the study of the Ten Commandments in

public schools, but merely prevent their posting on a

schoolhouse wall with no evident secular context. See

Stone v. Graham, 449 U.S. 39, 42 (1980) (contemplating

that Commandments may be integrated into a study of

history, civilization, ethics, or comparative religion even

though they may riot be posted on schoolhouse walls). The

Court is free to employ whatever hypothetical constructs it

thinks useful to lower courts in assessing the application of

the presumption in particular cases; the existence of the

presumption as a starting point would no doubt render any

factors the Court would choose more clear than the present

“reasonable observer” standard.

29

Adoption of Justice Stevens’ presumption would be

fair to all citizens in refusing to permit the organs of

government to be appropriated by aspiring theocrats. It

would greatly aid in depoliticizing the Fetablishment

Clause, which was designed to withdraw rights of

conscience “from the vicissitudes of political controversy.”

Barnette, 319 U.S. at 638. It would mark an improvement

in judicial understanding of what symbols mean, politically

and religiously. This Court should, accordingly, revisit

Justice Stevens’ dissent in Allegheny and consider the

evident as well as the latent flaws of the current standard

discussed by amici.

CONCLUSION

The Constitution’s solicitude for “constitutional

people” who do not believe in deity is subverted by a

reasonable observer standard which subtly incorporates or

ratifies “mainstream” monotheistic assumptions. This

renders these constitutional people, too often,

constitutional strangers. The Court’s current standard fails

to appreciate how actual nonhypothetical citizens react

when government communicates through symbols.

Religious symbols in or near core government buildings

are particularly evocative because they marry the visual

majesty of government to those religious symbols. This

Court should adopt a standard that is equal to the aspiration

of treating religious adherents and nonadherents exactly

the same.

Respectfully submitted,

PAMELA L. SUMNERS*

528 N. Humphrey Ave.

Oak Park. IL 60302

708.763.9827

* COUNSEL OF RECORD

30

LARRY DARBY

P.O. Box 3905

Montgomery, AL 36109

334.270.8223