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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0005%3A19

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 844

## Text

EP NO a a

~ § supreme Coun, U.S-
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; ! 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0005%3A19. Public record. Not legal advice.