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

Fa

No. 03-1693

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

McCCREARY COUNTY, KENTUCKY, et al.,

Petitioners,

V.

AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, et al.

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF COUNCIL FOR SECULAR HUMANISM

AND INTERNATIONAL ACADEMY OF HUMANISM

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

RONALD A. LINDSAY *

815 Connecticut Avenue, N.W.

Suite 500

Washington, DC 20006-4004

(202) 463-2400

* Counsel of Record Counsel for Amici Curiae

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

QUESTION PRESENTED

Whether the Establishment Clause prohibits the govern-

ment from prominently displaying religious texts such as the

Ten Commandments in courthouses.

(i)

TABLE OF CONTENTS

Page

GUIS THIN PRESENTED. .0.ccccssccsecsccccccccccccssccsseccseccece i

ee FF OI FO cccccccsscdiccssccncscsenecsscsncesosesie Vv

INTEREST OF THE AMICI CURIAE |..0......0..cc00ce000000+ l

SUMMARY OF ARGUMENT................::cccsecesseeeseeeees 2

ETI Re 5

I. PETITIONERS’ DISPLAYS OF THE TEN

COMMANDMENTS USE THE GOV-

ERNMENT TO IMPART RELIGIOUS

EO ee 5

A. Petitioners’ Asserted Secular Purpose Re-

flects Religious Faith, Not Historical Fact .. 5

B. Petitioners Rely on Unsubstantiated

Assertions About the Foundational Role of

the Ten Commandments, Which Historical

Analysis Proves Mistaken ..................00000++ 9

C. Consistency with Secular Laws Does Not

Prove That the Ten Commandments Are

the Source of These Laws............................ 12

D. The Interpretation Given the Ten Com-

mandments by Moses Would Be Rejected

and Condemned by Today’s Americans As

Well As Americans of the Founding

PIII ciscsuiipatintnetisndtneiasvsdantenstnsainseinsianeiin 14

E. The New American Nation Repudiated

Efforts by Some Colonies to Model Laws

BT ss sinictccceneinasentnantedndanendninnnnta 19

(iii)

1V

TABLE OF CONTENTS—Continued

Page

Il. PETITIONERS’ DISPLAYS CONSTITUTE

AN IMPERMISSIBLE ENDORSEMENT OF

A PARTICULAR RELIGIOUS FAITH ........... 21

Cn ee ccnscnccenvavnssionnsinnpninenaniinlmianuiatiniinuninintutties 25

Vv

TABLE OF AUTHORITIES

Cases: Page

ACLU of Kentucky v. McCreary County, 354

FSG SSB CG Cis. FOB) anccocccccsccessccesscoscesees 5, 6,21, 22

Anderson v. Salt Lake City Corp., 475 F.2d 29

SETI GUPTIE ccnschicsianeseinitdudeanadiauinmmieanaaisinniies 9

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

rae scceiesidiicebicecihesnesuisbiiidatnabialiisnsbatndimmaiaiiaeneaviiiida 21

City of Elkhart v. Books, 532 U.S. 1058 (2001)... 9

Church of the Holy Trinity v. United States, 143

Satoh ASO IIIT nucesdcisbiittsintinebdadienasniindeainiotsionneaieis 10

Coffin v. United States, 156 U.S. 432 (1895)........ 1]

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

[STITT eliaieshnssscieinisiapieieniiuiiniiiidsidaaiintdalcatadaliaiasidiehaddinieie 5

Crawford v. Washington, 541 U.S. 36, 124 S.Ct.

TTA RRR NE REE Ne TERE 7

Cubbins v. Mississippi River Comm’n, 241 U.S.

eee sceitiiinicibiestnidtasneidiigiiaiiatamiaiadiniteatiiiiiiiien 1]

Edwards v. Aguillard, 482 U.S. 578 (1987).......... 6,7

Elk Grove Unified Sch. Dist. v. Newdow, 124

es Ne ee reihibicininidceaiteeaitisdinalidiatemuiaditdtis 2

Everson v. Board of Education, 330 U.S. 1

Species inant aiaaiaaliiag 4, 20

Geer v. Connecticut, 161 U.S. 519 (1895)............ 11

Jackson v. Gridley, 18 Johns. 98 (N.Y. 1820)....... 23

Kurtz v. Baker, 644 F.Supp. 613 (D.D.C.) ............ 24

Larkin v. Grendel’s Den, 459 U.S. 116 (1982)...... 11

Larson v. Valente, 456 U.S. 228 (1982)............00. 1]

Lee v. Weisman, 505 U.S. 577 (1992) ........:ccccce0ee 5

Lynch v. Donnelly, 465 U.S. 668 (1984) ............0+ 21

Marsh v. Chambers, 463 U.S. 783 (1983)............ 7

Myers v. United States, 272 U.S. 52 (1926).......... 3, 8, 15

Roe v. Wade, 410 U.S. 113 (1973) oo... ceeeeeees 1]

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290

Vi

TABLE OF AUTHORITIES—Continued

Page

Stone v. Graham, 449 U.S. 39 (1980) «0.0... eee 3,5,9

Tee-Hit-Ton Indians v. United States, 348 U.S.

5 RRA ei eared AOC Oe 17

Tennessee v. Lane, 124 S.Ct. 1978 (2004) ............ 22

United States v. Percheman, 32 U.S. 51 (1833)... 17

Utah v. Evans, 536 U.S. 542 (2004)... eee 15

Van Beeck v. Sabine Towing Co., 300 U.S. 342

EL es Re Sn ey ena ee aN 11

Wallace v. Jaffree, 472 U.S. 38 (1985) ....... cee 10

Washington v. Glucksberg, 521 U.S. 702 (1997).. 2

Constitutional Provisions:

UIE Sills seccuibisasiaelactltarntainaie iduiosidinndsinniniaeddaiiiiiditiuieusiideinadian 20

FE: Drcctisnncsesinnisastscianninnineniiiniaininiinninainnianie passim

Scriptural Citations:

I Fe Be catnnininiicsencintenniininniinnhenanecaninion 4, 16

IIE TIE Ba cccssicnsnccssnsvincnineseniennenassomes 18-19

I hee. Bie erctnnsesenicianesevinsappemneninniscese 18-19

I ia eid ca laheiliice cited aiaaliadten 15

I I aici ad ctitinactacetinletahbaaiibaianaindiionenitis 18

enone an eee me 4, 16

ala 4,18

I III SIT ss seseissidcibiabidanibandidaianaiaanniaiiaan 4

iia iene aiteailimieailinns 16

SI a nt cee alles 15, 17, 24

Other Authorities:

Bernard Bailyn, The Ideological Origins of the

American Revolution (1967)............ccccceeseeeeeeeees 1]

Tom L. Beauchamp, A Defense of the Common

Morality, 13 Kennedy Instit. of Ethics Journal

IT ssienstaicninihoacissisiniataidied soteaneoosssesnsasemmensenten 12

Sissela Bok, Common Values (1995) .............000008 3, 12

vil

TABLE OF AUTHORITIES—Continued

Page

Cong. Rec. H 1209 (daily ed. March 6, 1984)....... 24

Steven K. Green, The Fount of Everything Just

and Right? The Ten Commandments as a

Source of American Law, 14 J. L. Religion 525

(1999-2000)......... ipncnneneeniednanenindnansetpiniasneiennie 10, 19-20

H. L. A. Hart, The Concept of Law (1961)........... 3, 12-13

Hartogensis, Denial of Equal Rights to Religious

Minorities and Non-Believers in the United

States, 39 Yale L. J. 659 (1930) oo... eeeeeeeeeees 23

Richard H. Helmholz, Canon Law and the Law

Ee iicicinendonndesnninnieaniinmeninesioedin 1]

Richard H. Helmholz, Magna Carta and the ius

commune, 66 U. Chi. L. Rev. 297 (1999).......... 1]

Richard A. Posner, The Problematics of Moral

and Legal Theory (1999) .......cccccccccceesssesseeeseeeees 14

Public Agenda, For Goodness’ Sake: Why So

Many Americans Want Religion to Play a

Greater Role in American Life (2001)............... 23

Peter Singer, The Expanding Circle (1981)........... 12, 24

The New Oxford Annotated Bible (Herbert G.

May and Bruce M. Metzger eds.) (1977).......... 15

Fredric D. Weil, Tolerance of Free Speech in the

United States and West Germany, 1970-79, 60

Social Forces 973 (19B2)............ccccccccsssccecsssesees 23

Hugh Whitt and Hart M. Nelsen, Residence,

Moral Traditionalism and Tolerance of

Atheists, 54 Social Forces 328 (1975).............. 23

IN THE

Supreme Court of the Anited States

No. 03-1693

McCCREARY COUNTY, KENTUCKY, ef al.,

Petitioners,

V.

AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF COUNCIL FOR SECULAR HUMANISM

AND INTERNATIONAL ACADEMY OF HUMANISM

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE'

The Council for Secular Humanism is a_ non-profit

educational organization headquartered in Amherst, New

York. The Council engages in a variety of activities that are

designed to support institutions, principles, and values that

are consistent with a secular worldview, including democ-

racy, respect for human rights, reliance on reason instead of

' The Council and the Academy file this brief with the consent of the

parties, and letters evidencing such consent have been filed with the

Court. Pursuant to Rule 37.6, amici certify that no counsel for a party

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

than the amici has made a monetary contribution to this brief’s prep-

aration or submission.

2

the supernatural, and freedom of inquiry. Among other

activities, the Council publishes the journal Free Inquiry.

The Council has participated as an amicus in other cases

involving civil liberties, including E/k Grove Unified Sch.

Dist. v. Newdow, 124 S.Ct. 2301 (2004) and Washington v.

Glucksberg, 521 U.S. 702 (1997).

The International Academy of Humanism is an affiliate of

the Council established to draw on the resources of various

distinguished writers, academics, politicians and scientists

(including Nobel laureates) in disseminating humanistic

ideals and beliefs. Members of the Academy are committed

to free inquiry in all fields of human endeavor, the use of the

scientific method, and support of humanist values and

principles, including freedom of speech and religion and the

dignity of the individual. The Secretariat of the International

Academy of Humanism consists of Vern Bullough, professor

of history, California State University; Antony Flew,

professor emeritus of philosophy, Reading University; Paul

Kurtz, professor emeritus of philosophy, SUNY at Buffalo;

Gerald Larue, professor emeritus of archaeology and biblical

studies, University of Southern California at Los Angeles;

and Jean-Claude Pecker, professor of astrophysics, College

de France, Academie des Sciences. A complete listing of the

members of the Academy may be found at www.secular

humanism.org/academy. The Academy previously partici-

pated as an amicus in Washington v. Glucksberg, 521 U.S.

702 (1997).

SUMMARY OF ARGUMENT

Petitioners’ courthouse displays of the Ten Command-

ments use undeniably religious texts to advance an unmis-

takable religious goal, namely to convince all those entering

the courthouses that the laws applied therein are and should

be based on the religious doctrine of a particular faith. It

-would be difficult to imagine a more vivid example of an

Establishment Clause violation.

3

Not unexpectedly, petitioners attempt to mask their

religious intent by contriving a secular purpose for the

displays. But “no . . . recitation of a supposed secular pur-

pose can blind one” to the inherently religious nature of the

displays. Stone v. Graham, 449 U.S. 39, 41 (1980).

Moreover, petitioners’ asserted secular purpose does not

withstand scrutiny. Petitioners contend that the displays

serve to inform the public that the Ten Commandments

provide the foundation for American Law. This claimed

connection lacks any historical warrant.

That petitioners’ avowed secular purpose reflects religious

faith, not fact, is shown by the fallacious reasoning which

leads them from the unremarkable observation that there are

American laws prohibiting theft, perjury and unjustifiable

homicide to the conclusion that these laws are necessarily

derived from the Decalogue. History, sociology and common

sense demonstrate otherwise. Every human community—

including communities that had no contact with the ancient

Hebrews—has had moral or legal prohibitions against mur-

der, theft and deceit. Sissela Bok, Common Values (1995); H.

L. A. Hart, The Concept of Law (1961). Consistency between

American law and some of the prohibitions set forth in the

Ten Commandments (at least as they are interpreted by

petitioners) does not suffice to establish a causal relationship.

The absence of a causal relationship becomes even clearer

when one distinguishes between petitioners’ sanitized version

of the Ten Commandments and the original understanding of

the Ten Commandments. It is the contemporaneous under-

standing of the Ten Commandments at the time of their

promulgation—that is, the understanding that Moses had of

them—that fixes their true meaning. Myers v. United States,

272 U.S. 52, 175 (1926) (contemporaneous exposition of

the Constitution by founders of our government fixes its

meaning). The same books of the Bible that provide peti-

tioners the Decalogue demonstrate that Moses did not regard

4

commandments such as “Thou shalt not kill” and “Thou shalt

not steal” as prohibiting the killing and the dispossession of

humans who did not share his religious views. Exodus 23:

23-30, 32: 25-29; Deuteronomy 7: 1-2. See also Numbers 31:

6-18. By contrast, American law has never allowed persons

with unorthodox religious views to be deprived of their

property or killed with impunity. In substituting their more

congenial interpretation of the Ten Commandments for the

original understanding of the Ten Commandments, peti-

tioners are engaging in an ambitious revision of the Old

Testament that Orwell’s Big Brother would envy.

A similar disregard for both history and logic is manifested

by petitioners’ claim that the fact that some of the early

colonists modeled some of their laws on the religious edicts

in’ the Decalogue implies that American law is founded on the

Decalogue. Petitioners want this Court to ignore the dis-

tinction between colonial law and American law, and to

pretend that the Constitution and the Bill of Rights do not

exist. The founding generation found the misguided efforts

of some colonists to impose religious uniformity abhorrent,

and these sentiments “found expression in the First Amend-

ment.” Everson v. Board of Education, 330 U.S. 1, 11

(1947). To the extent the founders used the religious edicts of

Ten Commandments as an example, they were used as an

example of what not to enact into law.

In short, to sustain petitioners’ claim that the displays have

a secular purpose, this Court must pretend that Jews and

Christians are the only persons who have ever rejected theft,

murder and deceit, that Moses is not a reliable guide as to

how the Ten Commandments should be interpreted, and

that America’s founding generation embraced, rather than

rejected, attempts by some colonists to oppress religious

minorities. The Establishment Clause cannot be circum-

vented by inventing an alternative universe.

5

ARGUMENT

I. PETITIONERS’ DISPLAYS OF THE TEN COM-

MANDMENTS USE THE GOVERNMENT TO

IMPART RELIGIOUS DOCTRINE

The “central meaning of the Religion Clauses of the First

Amendment . . . is that all creeds must be tolerated and none

favored.” Lee v. Weisman, 505 U.S. 577, 590 (1992).

Prominently displaying texts sacred to a particular religion or

religions in courthouses or schools unambiguously informs

the observer that the government favors certain beliefs. Such

conduct by the government is imp2rmissible under the

Establishment Clause. County of Allegheny v. ACLU, 492

U.S. 573, 593-94 (1989) (the Establishment Clause “prohibits

government from appearing to take a position on questions of

religious belief”).

This Court’s prior decision in Stone v. Graham, 449 U.S.

39, 41 (1980), grounds any analysis of the constitutionality of

the challenged displays. Stating the obvious, this Court

observed that the “Ten Commandments are undeniably a

sacred text in both the Jewish and Christian faiths and no.. .

recitation of a supposed secular purpose can blind us to that

fact.” In the instant case, the U.S. Court of Appeals for the

Sixth Circuit was not blinded to-the religious character of the

Ten Commandments. Accordingly, it correctly determined

that the Ten Commandments displays serve primarily a

religious purpose and are, therefore, unconstitutional. ACLU

of Kentucky v. McCreary County, 354 F.3d 438, 453-54 (6"

Cir. 2003).

A. Petitioners’ Asserted Secular Purpose Reflects

Religious Faith, Not Historical Fact

Of course, petitioners insist that the displays serve a secular_

purpose. They locate this purpose in the purported educa-

tional value of the displays. Petitioners’ Brief at 9 (purpose

of the displays is to “educate the public”). What they hope to

6

instruct the public on is the supposed truth of the claim that

the Ten Commandments provide the “moral background” of

the Declaration of Independence and the foundation of the

American legal tradition. McCreary County, 354 F.3d at 454.

Curiously, however, despite petitioners’ decision to pred-

icate their avowed secular purpose on the educational value

of the exhibit, petitioners are resistant to having the courts

examine the factual basis for their claim that the Ten

Commandments are the foundation of American law. Peti-

tioners assert in their brief that the historical accuracy of the

claimed connection between the Ten Commandments and

American law is not at issue because the display could serve a

secular purpose even if the claimed connection did not exist.

Petitioners’ Brief at 10-11. They state: “Petitioners’ purpose

is not to debate historians but to post a Display about law.”

Id. Petitioners’ point is not well-taken. To maintain the

displays are “about law” is mere question-begging unless the

purported connection between the Ten Commandments and

American law can be established. Petitioners’ contention that

this Court should not examine the accuracy of their claim

betrays a seriously flawed understanding of this Court’s

Establishment Clause jurisprudence. Clearly, one way to

distinguish a sham from a valid purpose is to determine

whether the purported justification is based on faith or facts.

Religious tenets cannot be forced on the public by mas-

querading them as science. Edwards v. Aguillard, 482 U.S.

578 (1987). Similarly, religious tenets cannot be forced on the

public by masquerading them as historical fact.

Furthermore, as a matter of logic, petitioners’ claims about

history invite and require scrutiny. Petitioners have tried to fit

a undeniably religious text into a secular mold by maintaining

there is a critical, foundational connection between this

religious text and secular law. They cannot simultaneously

try to insulate this alleged connection from review by telling

this Court it is none of its business whether there is historical

7

support for this connection. One could not justify posting

Mormon tracts and texts in courthouses by the simple

expedient of contending that the Book of Mormon is the

foundation of American law. The Establishment Clause

cannot be so easily circumvented.

This Court is no stranger to historical analysis. See, e. g.,

Crawford v. Washington, 541 U. S. 36, 124 S.Ct. 1354 (2004)

(extensive historical analysis of origins of Confrontation

Clause). Indeed this court has relied on its reading of history

both to validate practices otherwise susceptible to an Estab-"

lishment Clause challenge and to support a conclusion that a

practice violates the Establishment Clause. E.g., Marsh v.

Chambers, 463 U.S. 783, 790 (1983) (historical evidence

critical for determining that legislative chaplaincies are

constitutional); Edwards v. Aguillard, 482 U. S. at 590

(history of opposition to theory of evolution by various

religious denominations relevant for determining whether

statute has a predominantly religious purpose). Granted,

there are historical claims that are difficult to resolve (for

example: a conflict substantially similar to the Trojan War

depicted in Homer actually took place), but there are also

many historical facts that should be accepted by all rea-

sonable individuals, even if there is some speculation to the

contrary (for example: the Egyptian pyramids were built by

human beings.) As shown below, petitioners’ claim that the

Ten Commandments is the fourdation of our legal tradition

cannot withstand a reasoned analysis. Indeed, it is not too

strong to say this claim represents a gross distortion of his-

- tory. With this pretext for the displays removed, petitioners’

argument that the displays serve a secular purpose collapses.

In undertaking an historical analysis of the role played by

the Tem Commandments in the American legal system, one

must be careful to avoid mistakes that are all too evident in

petitioners’ arguments. Four errors in particular render peti-

tioners’ historical discussion useless as a guide for this Court.

8

First, one cannot prove an historical connection simply by

quoting individuals, however distinguished, who assert there

is such a connection. Cf. Petitioners’ Brief at 11 n. 8. One

must examine the facts upon which these individuals base

their assertions. Second, it is a logical and sociological

fallacy to assert that the Ten Commandments served as an

actual model or exemplar for American law merely because

the current understanding of some of the commandments is

consistent with various American laws. Prohibitions of theft,

deceit and unjustified homicide are found in every culture,

past and present. Third, to establish that the Ten Command-

ments provide the foundation for American law, precision

about the proper interpretation of the Ten Commandments is

indispensable. Plaintiffs fail to consider the striking differ-

ences between the current understanding of the Ten Com-

mandments within their religion and the contemporaneous

interpretation of the Decalogue by Moses. Obviously, the

manner in which Moses interpreted the Decalogue is critical

for fixing its true meaning and for determining what

influence, if any, the Decalogue had on American law. See

Myers v. United States, 272 U.S. 52, 175 (1926) (contem-

poraneous exposition of the Constitution by founders of our

government fixes its meaning). Finally, one cannot equate the

laws of British colonies, some of which, such as Massa-

chusetts, operated for a time as theocratic states, with Amer-

ican law, especially when American law represented, in part,

a rejection of these colonial precedents. Once the palpable

errors in petitioners’ historical discussion are removed, there

can be no tenable argument that the Ten Commandments

provide the foundation for American law.

9

B. Petitioners Rely on Unsubstantiated Assertions

About the Foundational Role of the Ten Com-

mandments, Which Historical Analysis Proves

Mistaken

Petitioners place significant weight on quotations from a

number of jurists who have speculated about the role of the

Ten Commandments in the development of American law.

Petitioners’ Brief at 11, 21. For example, petitioners quote

Chief Justice Rehnquist’s dissent from the denial of certiorari

in City of Elkhart v. Books, 532 U.S. 1058, 1059 (2001), in

which the Chief Justice referred to the “foundational role of

the Ten Commandments in secular, legal matters.” /d. at

1062. However, the Chief Justice cited no authority to

support this claim. In the Chief Justice’s prior dissent in

Stone v. Graham, 449 U. S. at 43-47, the Chief Justice did

cite to the opinion of the U. S. Court of Appeals for the Tenth

Circuit in Anderson v. Salt Lake City Corp., 475 F.2d 29, 33

(10th Cir. 1973), as support for a similar proposition.

However, a review of Anderson itself indicates that the Tenth

Circuit used as sole evidence for its conclusion about the

secular importance of the Ten Commandments the vague

remark of one of the Anderson plaintiffs that “‘the Ten

Commandments is an affirmation of at least a precedent legal

code.’” 475 F.2d at 33. That the Ten Commandments are, in

some sense, a portion of a proto-legal code is not in dispute.

What is disputed is whether the Ten Commandments provide

the foundation for the American legal system. Tracing the

Chief Justice’s observations back to their apparent source

reveals that, while they were undoubtedly motivated by a

desire for accuracy, they lack adequate and reliable support.

A similar analysis could be carried out on all the various

observations and remarks quoted by petitioners. Opinions of

this Court and other American courts, especially those dating

to a time prior tc the development of modern Establishment

Clause jurisprudence, provide fertile ground for offhand

10

observations about the importance of the Ten Command-

ments, the Bible or Christianity to the development of the

law. It is, for example, notoriously true that this Court once

declared, more than a century ago, that the United States “is a

Christian nation.” Church of the Holy Trinity v. United

States, 143 U. S. 457, 471 (1892). However, none of these

opinions provides anything resembling a careful historical

analysis of the role of the Ten Commandments, the Bible or

Christianity in the development of American law, instead

relying principally, if not exclusively, on what prior judicial

decisions said about the importance of the Ten Com-

mandments, the Bible or Christianity. Essentially, the various

quotations on which petitioners rely amount to nothing more

than an judicial chain-letter extended over dozens of decades

in which one jurist relies on another jurist’s comments as

authority for a dubious proposition, without anyone ever

bothering to examine the underlying factual support for this

proposition. Repeating an opinion does not convert it into

reality. As one jurist has noted, “no amount of repetition of

historical errors in judicial opinions can make the errors true.”

Wallace v. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, J.,

dissenting). Establishment Clause jurisprudence should not be

erected on a house of cards.

Fortunately, there has been some historical analysis of the

claim advanced by petitioners, and that analysis establishes

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

relationship between the law and the Ten Commandments.”

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

The Ten Commandments as a Source of American Law, 14 J.

L. Religion 525, 558 (1999-2000). Professor Green points out

that English common law relied primarily on custom, not the

Decalogue or the Bible. /d. at 532. Moreover, the founders

of the American government (as distinguished from British

colonies) relied on “Enlightenment thinkers such as Locke,

Pufendorf and Grotius for inspiration.” /d. at 544. Other

well-respected scholars have reached similar conclusions.

1]

See, e.g., Bernard Bailyn, The Ideological-—Origins of the

American Revolution 27 (1967) (“The ideas and writings of

the leading secular thinkers of the European Enlightenment—

reformers and social critics like Voltaire, Rousseau, and Bec-

caria as well as conservative analysts such as Montesquieu—

were quoted everywhere in the colonies, by everyone who

claimed a broad awareness.”’) (emphasis added).”

Significantly, petitioners also overlook entirely the con-

tributions of Roman law to both British and American law.

This oversight is very relevant to petitioners’ claims because

Roman law developed independently of Judaism or Chris-

tianity.’ Although the precise extent to which Roman law

influenced British and, subsequently, American-law remains a

matter of controversy, that it had a significant influence does

not seem open to question. See, e. g., Richard H. Helmholz,

Canon Law and the Law of England (1987); Richard H.

Helmholz, Magna Carta and the ius commune, 66 U. Chi. L.

Rev. 297 (1999). Furthermore, a survey of this Court’s

decisions reveals many instances in which Roman law has

been referenced as supplying at least part of the rationale for

a decision. See, e.g., Crawford, 124 S.Ct. at 1359; Roe v.

Wade, 410 U.S. 113, 130 (1973); Van Beeck v. Sabine

Towing Co. 300 U.S. 342, 344-45 (1937); Cubbins v.

Mississippi River Comm'n, 241 U.S. 351, 363-66 (1916);

Geer v. Connecticut, 161 U.S. 519 (1895); Coffin v. United

States, 156 U.S. 432, 450-55 (1895). By contrast, it is not

clear whether the Ten Commandments have ever supplied

part of the rationale for a decision by this Court.

? Bailyn’s book, winner of the Pulitzer and Bancroft prizes, has been

previously cited by this Court as an authority on the thoughts and con-

cerns of this nation’s founders. See, e.g., Larkin v. Grendel's Den, 459

U.S. 116, 127 n. 10 (1982); Larson v. Valente, 456 U.S. 228, 244 (1982).

* Obviously, after the reign of Constantine, Roman law began to reflect

some Christian precepts. But by that time Rome had been a nation for

centuries.

12

C. Consistency with Secular Laws Does Not Prove

That the Ten Commandments Are the Source

of These Laws

As suggested by arguments in their brief, petitioners would

undoubtedly reject this last contention, maintaining that our

laws against various forms of theft, unjustified homicide, and

perjury mirror and, therefore, can be traced to some of the

commands of the Decalogue. Petitioners’ Brief at 26-27.

Here, petitioners commit an error that is fatal to their his-

torical claims as well as being very revealing about both the

purpose and effects of their displays. Petitioners effectively

argue that because many laws are consistent with their

understanding of the Ten Commandments, that implies these

laws are based on the Ten Commandments. This contention

truly establishes that petitioners are viewing history through

the prism of faith.

All or virtually all human societies have had moral or legal

prohibitions against unjustified killing, theft and deceit.

“(I]njunctions against violence, deceit and betrayal . . . are

familiar in every society and every legal system. They have

been voiced in works as different as the Egyptian Book of the

Dead, the Icelandic Edda, and the Bhagavad-Gita.” Sissela

Bok, Common Values 15 (1995). Any community in which

such minimal rules were lacking would be extremely short-

lived. Given human vulnerabilities, some rudimentary prin-

ciples of cooperation are indispensable. “In every well-

functioning society norms are in place to prohibit lying,

breaking promises, causing bodily harm, stealing, fraud, the

taking of life, the neglect of children and failures to keep

contracts.” Tom. L. Beauchamp, A Defense of the Common

Morality, 13 Kennedy Instit. of Ethics Journal 259, 261

(2003). See also Peter Singer, The Expanding Circle (1981).-

The leading jurisprudential scholar of the last hundred years

stated unequivocally that the law has a certain minimum

content. H.L.A. Hart, The Concept of Law 189 (1961). There

13

is a common element in the law of all societies because “any

social organization must contain [these rules] if it is to be

viable.” /d. at 188.

From the foregoing, it is readily apparent that the mere

consistency between the petitioners’ understanding of some

of the Ten Commandments (that is, the ones that do not

prescribe specifically religious duties) and American laws

does not establish a causal relationship. Sumerian society, the

civilizations of ancient Egypt, China and Greece, Rome, the

Inca Empire, etc. all have had laws prohibiting unjustified

homicide, theft and materially significant deceit. Further-

more, no society could survive without such rules. In

attributing to the Ten Commandments laws that are the

common heritage of civilized society, petitioners are

attempting to elevate their religion to a special status. They

are maintaining that society would dissolve into anarchy were

it not for the Ten Commandments. Such a claim is not only

historically and sociologically preposterous, but it under-

scores the transparently religious nature of the displays.

Petitioners are not using the displays to educate the public

(unless “educate” is synonymous with “misinform”), but to

proselytize by suggesting to the public that they must adhere

to the Ten Commandments lest society collapse.

Of course, if petitioners could show that the Ten Com-

mandments should be interpreted in a way that distinguishes

them from the common content of law found in all societies

and that these differences provide the foundation of American

law, then perhaps some credence could be given to their

claim. Arguably, by analyzing the interpretation and

application of the Ten Commandments by Moses, they could

show the former, but it would be impossible for them to show

the latter. The Council and the Academy now turn to an

examination of the Ten Commandments as they were

interpreted and applied by Moses.

14

D. The Interpretation Given the Ten Command-

ments by Moses Would Be Rejected and

Condemned by Today’s Americans As Well As

Americans of the Founding Generation

One cannot cogently argue that X provides the foundation

for Y if one is not even clear what X is. Incredibly, petitioners

expend virtually no time addressing the content and im-

plications of the Ten Commandments, assuming they are a

given. This, of course, reinforces the point that petitioners are

advancing their particular religious viewpoint through their

displays. Perhaps within petitioners’ religious tradition the

meaning of the Ten Commandments is clear, but different

traditions have interpreted these commandments differently.

An abstract prohibition of “killing” does not provide

serviceable moral or legal guidance. One must be clear about

who is protected by this prohibition. As one perceptive jurist

has noted, what counts as an unjustified killing “varies

enormously from society to society.” Richard A. Posner, The

Problematics of Moral and Legal Theory 6 (1999).

Insisting that this Court attend to the differences in

interpretation of the Ten Commandments is not a mere quib-

ble. Leaving aside the different wording and numbering of the

commandments among different religions,’ there are striking

differences between the way in which petitioners appear to

interpret the commandments, in particular the ones that do not

deal with strictly religious obligations, and the way in which

Moses interpreted them. For example, even a cursory re-

view of the Bible, which, of course, is our source for the

Decalogue, establishes that Moses did not include all humans

within the scope of the commandments “Thou shalt not kill”

and “Thou shalt not steal.” The commandments were in-

* We do not mean to discount the significance of the differences in the ~

numbering and wording of the commandments, but this point has been

adequately addressed in other briefs.

15

tended to govern relations within the community of the

ancient Hebrews; they did not protect those living outside the

Hebrew community.” This contemporaneous construction of

the Ten Commandments, that is the Ten Commandments as

applied by Moses, fixes their true meaning. See Myers v.

United States, 272 U.S. at 175 (contemporaneous exposition

of the Constitution by founders of our government fixes its

meaning). See also Utah v. Evans, 536 U. S. 542, 503 (2004)

(Thomas, J., dissenting) (same). Once the true meaning of the

commandments is fixed by the words and deeds of Moses,

any claim that they provide the foundation for American law

ceases to be credible.

The Bible reveals that not long after Moses received the

Ten Commandments and promulgated them to the ancient

Israelites, Moses showed how narrowly the injunction not to

kill should be applied. Specifically, after Moses directed the

Israelites to attack and slaughter a people known as the

Midianites, he was angry when his warriors returned with

more captives than he thought necessary. Moses stated:

Now therefore, kill every male among the little ones, and

kill every woman who has known man by lying with

him. But all the young girls who have not known man by

lying with him, keep alive for yourselves.

Numbers 31: 17-18. An adjacent passage in Numbers sheds

light on Moses’ interpretation of the commandment “Thou

shalt not steal.” Again, the protections of this commandment

* Significantly, the Decalogue is introduced by God’s statement that “I

am the Lord your God, who brought you out of the land of Egypt, out of

the house of bondage.” Exodus 20:2. This statement makes it clear that

the Ten Commandments form part of the covenant between God and the

people of Israel.

All quotes from the Bible are from the New Revised Standard Version

found in The New Oxford Annotated Bible (Herbert G. May and Bruce M.

Metzger eds.) (1977).

16

did not extend to those outside the covenant between the

Israelites and their deity:

And the people of Israel took captive the women of

Midian and their little ones; and they took as booty all

their cattle, their flocks and all their goods.

Numbers 31: 9.

Indeed, almost immediately after Moses received the

commandments from his deity, Moses and the Israelites

embarked on a ruthless war of aggression to occupy land

already inhabited by other peoples. Moses understood this

war to be expressly sanctioned by his deity:

When my angel goes before you, and brings you in to

the Amorites, and the Hittites, and the Perizzites and the

Canaanites, the Hivites, and the Jebusites and I blot them

out, you shall not bow down to their gods, nor serve

them, nor do according to their works, but you shall

utterly overthrow them and break their pillars in pieces

.. . L will send my terror before you, and will throw into

confusion all the people against whom you shall come,

and I will make all your enemies turn their backs to you.

And I will send hornets before you, which shall drive out

Hivite, Canaanite, and Hittite from before you . . . Little

by little I will drive them from before you, until you are

increased and possess the land.

Exodus 23: 23-30. See also Deuteronomy 7: 1-2 (Israelites

instructed to show no mercy to the Canaanites, et al. after

taking possession of their land). Today, we would

undoubtedly consider an unprovoked war with the aim of

dispossessing entire groups of people to be a horrible crime; it

is what is euphemistically referred to as “ethnic cleansing.”

Moreover, although the founders of our nation may have

lacked some of our sensitivities, there is no record of

Washington, Jefferson, Franklin, Madison and others of this

generation accepting Moses’ conduct as a model for their

17

personal behavior or the legal relations between the United

States and other nations. The Louisiana Territory was

purchased by the United States, not stolen from France. When

the United States acquired territories from other nations, the

property rights of those already in these territories was

respected. United States v. Percheman, 32 U.S. 51 (1833)

(observing that the “sense of justice and of right which is

acknowledged and felt by the whole civilized world would

be outraged, if private property should be generally con-

fiscated” upon the acquisition of foreign territory by the

United States).°

The circumscribed scope of the commandments affects the

interpretation of other prohibitions as well. The command-

ment not to “bear false witness against your neighbor”

necessarily excludes the Canaanite, Hittite, et al. who, despite

their geographical proximity, were clearly not regarded as the

“neighbors” of the Hebrews. Moreover, the prohibition on

adultery did not preclude sexual exploitation of conquered

peoples. Moses’ instruction to “kill every woman who has

known man by lying with him” but to “keep alive for

yourselves” the “young girls who have not known man”

(Numbers 31: 17-18) was not, presumably, a way of selecting

women based on their cooking skills.

° Some may contend that the troubled relations between our nation and

Native Americans proves that Moses’ interpretation of the Ten Com-

mandments did serve as a model for American law. However, although

the actions of European explorers and early colonists were often adverse

to the interests of Native Americans, the official policy of the United

States after its founding as a nation respected the rights of Native

Americans (at least in theory). Accepting the earlier conquest as a fait

accompli, the United States policy thereafter was that Native Americans

could be removed from land only through negotiation, not forcible

dispossession. See Tee-Hit-Ton Indians v. United States, 348 U.S. 272,

273-74 (1955) (policy of Congress “throughout our history” has been to

extinguish Indian title through negotiation rather than by force).

18

Even the command to honor one’s father and mother is

connected with the belief that the Israelites were entitled to

take possession of the land of other peoples. The text of this

commandment, as found in the Bible, is: “Honor your father

and mother, that your days may be long in the land which the

Lord your God gives you.” Exodus 20:12. Petitioners cite no

examples of American laws which make discharging obli-

gations to one’s parents a condition precedent to the

acquisition of real property.

That the Ten Commandments form an inextricable part of

the covenant between the Israelites and their deity is also

demonstrated by the treatment of Israelites who violated key

terms of the covenant, in particular the obligation to worship

their deity exclusively. Everyone is familiar with the story of

the Israelites who decided to worship a golden calf while

Moses was absent. Less familiar is the conclusion of that

story, in which Moses, the transmitter of the prohibition not

to kill, ordered his loyalists to go “throughout the camp,-and

slay every man his brother, and every man his companion,

and every man his neighbor,” with the result that “there fell

... that day about three thousand men.” Exodus 32: 27-29.

In pointing out that Moses’ interpretation of the Decalogue

is starkly distinct from petitioners’ apparent interpretation of

similar prohibitions, we mean no disrespect to those who

venerate Moses as a lawgiver and religious leader. Retro-

spective moral judgments—especially ones concerning the

conduct of individuals who lived millennia ago—are always

questionable. The ancient Middle East was not exactly a

haven of peace and tranquility and goodwill among all

peoples. Among almost all ancient peoples, moral and legal

norms protected members of one’s own tribe, clan or

community; no comparable restraints protected individuals

belonging to other groups. So Moses was no worse than any

other leader, and in some ways he was more enlightened than

many of his time. Deuteronomy 23: 15-16; 24: 16-18 (for-

19

bidding return of runaway slaves and exploitation of

“sojourners,” the fatherless, and widows and rejecting the

notion of collective responsibility).

Nonetheless, petitioners should not be allowed to pass off

their sanitized rendition of the prohibitions set forth in the

Ten Commandments as the Ten Commandments, and then

use this Disney version as a means of government-sponsored

religious recruitment. This Court should not countenance

such a gross distortion of history as is suggested by

petitioners’ claim that Moses’ Ten Commandments provide

the foundation for American law.

E. The New American Nation Repudiated Efforts

by Some Colonies to Model Laws on the

Decalogue

Petitioners’ brief cites various examples of how some of

the British colonies in North America arguably modeled some

of their legislation on the Ten Commandments. For example,

petitioners cite to a 1641 Massachusetts law banning the

worship of “any other god but the Lord God” and a similar

New Hampshire law from 1680 prohibiting “idolatry.” Peti-

tioners’ Brief at 23-24. Petitioners are on somewhat more

solid footing with this claim as it is historically correct that

some colonies, especially early Massachusetts, made an ex-

plicit attempt to incorporate some portions of the Deca-

logue—in particular the commandments relating to religious

practices—into their legal codes. Green, The Fount of

Everything Just and Right at 536-43. Regrettably, some of

the early colonists did desire theocratic instead of democratic

government.

However, these attempts to incorporate portions of the

Decalogue were abandoned in th. 1700’s and then decisively

rejected by the United States once it became a nation. /d. at

542-43 (“Significantly, the failed experiment in Puritan New

England, over by the 1690s, would be as close as the nation

20

would ever come to a legal system based on the Decalogue.”).

As this Court has observed, the feelings that “found expres-

sion in the First Amendment” were feelings of indignation

and abhorrence at the efforts of some in the colonies to

impose religious uniformity. Everson v. Board of Education,

330 U.S. 1, 11 (1947). Moreover, fresh in the minds of the

founders was the history of the immediately preceding

centuries, which were “filled with turmoil, civil strife and

persecutions, generated in large part by established sects

determined to maintain their absolute political and religious

supremacy.” /d. at 8-9. It was in this attempt to maintain

religious supremacy that laws forbidding “idolatry” were

adopted, and it was precisely such intolerant legislation that

the Establishment Clause was designed to foreclose. Further-

more, it is no accident that the Constitution itself contains no

invocations of or references to deities and expressly forbids

any religious test for public office. U.S. Const., art. VI. From

the beginning of our existence as a nation, “idolaters” have

been free to hold public office.

Therefore, the influence of the Ten Commandments on

American law was, in this context, largely negative. One

cannot prove that the Ten Commandments constitute “the

foundation” of the American legal system by citing examples

of colonial religious edicts that were repudiated by the

Constitution and the Bill of Rights any more than one can

prove that the British monarchy constitutes “the foundation”

of America’s democracy by the references to the abuses of

King George in the Declaration of Independence.

*-_ + * *

Proving that an asserted purpose is a sham purpose can be

accomplished in several different ways. For example, one

can show that the asserted purpose is inconsistent with other

Statements or contentions made by the party. One can also

show that the asserted purpose is nothing more than a post-

hoc rationalization. See Santa Fe Indep. Sch. Dist. v. Doe,

21

530 U.S. 290, 315 (2000). Petitioners’ avowed secular

purpose fails for both of these reasons. McCreary County,

354 F.3d at 457. However, one can also show that an

asserted purpose is a sham by proving that it is wholly

lacking in credibility. Petitioners’ claim that their displays

serve the secular purpose of educating the public regarding

the foundational role of the Ten Commandments for Amer-

ican law asks this Court to pretend that Jews and Christians

are the only persons who have ever rejected theft, murder and

deceit, that the belligerent actions ascribed to Moses in the

Bible must have been carried out by someone impersonating

the Moses who promulgated the Ten Commandments, and

that America’s founding generation embraced, rather than

rejected, the misguided efforts of some colonists to oppress

religious minorities. A preposterous claim cannot substitute

for a genuine secular purpose. Petitioners’ displays violate

the Establishment Clause.

Il. PETITIONERS’ DISPLAYS CONSTITUTE AN

IMPERMISSIBLE ENDORSEMENT OF A PAR-

TICULAR RELIGIOUS FAITH

The Establishment Clause prohibits the government from

sponsoring a religious message, in part “because it sends the

ancillary message to members of the audience who are

nonadherents ‘that they are outsiders, not full members of the

political community, and an accompanying message to

adherents that they are insiders, favered members of the

political community.”” Santa Fe Indep. Sch. Dist., 530 U.S.

at 309-10 (quoting Lynch v. Donnelly, 465 U.S. 668, 688

(1984) (Q’Connor, J., concurring)). Through their inclusion

of documents such as the Bill of Rights in their Ten

Commandments displays, petitioners manage only to magnify

the extent of government endorsement of their_religious

message. Books v. City of Elkhart, 235 F.3d 292, 307 (7th

Cir. 2000). Indeed, petitioners’ sham secular justification for

the displays both-reveals what they really want to accomplish

22

and foreshadows what they likely will accomplish if their

displays are allowed to remain in the courthouses. Petitioners

want to appropriate the symbols of our government and link

them with their religious message through the fiction that the

Ten Commandments provide the foundation for American

law. As already demonstrated, petitioners’ claimed historical

connection is, to put it charitably, unsupported by a scintilla

of credible historical evidence. Yet by using their displays to

associate the Bill of Rights and other secular documents with

their religious texts, petitioners will surely be able to

convince many that their fiction is fact and that their religion

does have a special relationship with government. One must

grudgingly admit that this is a neat trick if petitioners can pull

it off: to use the Bill of Rights to validate a government-

sponsored religious message when it was precisely the

government sponsorship of religious messages that the Estab-

lishment Clause was intended to prevent.

Of course, the placement of these displays in courthouses,

“where the government carries out one of its quintessential

functions,” McCreary County, 354 F.3d at 461, similarly

intensifies the government’s endorsement of petitioners’

religious message. This Court has recognized the importance

of ensuring equal access to our nation’s courthouses. See

Tennessee v. Lane, 124 S.Ct. 1978 (2004). While petitioners’

displays do not serve to bar religious dissenters physically

from the courthouses, they serve as a more significant

impediment, namely to the possibility of religious dissenters

obtaining equal justice in these courthouses. Not only do the

displays send a message to all those who do not accept the

Ten Commandments as part of their religious beliefs that they

are second-class citizens, but they will likely affect the

perception of religious dissenters by those who do accept the

Ten Commandments. When an atheist witness insists on his

right to affirm, rather than swear, how will the religious

majority regard his testimony after being informed on a daily

23

basis throughout the course of a trial that our perjury laws are

based on the commands of a deity the atheist does not

acknowledge?

The concern that agnostics, humanists and atheists will

experience substantial adverse effects from petitioners’

displays is not speculative. Prejudice against nontheists has

deep roots in this country and courthouse doors have been

effectively closed to nonbelievers in the past. Earlier in our

history, when the Establishment Clause did not apply to the

states, many states did not permit atheists to testify, precisely

because they were considered inherently immoral and

unworthy of belief. E.g., Jackson v. Gridley, 18 Johns. 98

(N.Y. 1820). Some of these prohibitions continued into the

20" Century. See Hartogensis, Denial of Equal Rights to”

Religious Minorities and Non-Believers in the United States,

39 Yale L. J. 659, 667-68 (1930). Although official legal

burdens on nontheists have been removed, the hostility

towards them remains. Indeed, the animosity toward them is

still so intense that sociologists routinely study a group’s

attitudes towards atheists—along with Nazis—as a way of

measuring that group’s levels of tolerance. Fredric D. Weil,

Tolerance of Free Speech in the United States and West

Germany, 1970-79, 60 Social Forces 973 (1982). See also

Hugh Whitt and Hart M. Nelsen, Residence, Moral Tra-

ditionalism and Tolerance of Atheists, 54 Social Forces 328

(1975). Recent surveys confirm that the last respectable

prejudice in this country is bigotry toward nontheists. A poll

commissioned by the Pew Charitable Trust shows that only

49% of Americans would consider voting for an atheist for

president, whereas 95% would vote for an African-American,

92% would vote for a woman, 92% for a Jewish candidate

and 59% for a homosexual. Public Agenda, For Goodness’

Sake: Why So Many Americans Want Religion to Play a

Greater Role in American Life, 37-38 (2001).

24

The primary source of this hostility is the common belief

that morality must be based on God’s commands, with the

consequence that many view atheists and other religious

skeptics as incapable of moral behavior. See Kurtz v. Baker,

644 F. Supp. 613, 615, 623 (D.D.C. 1986) (discussing prayers

offered by Senate Chaplain Halverson, which asserted, inter

alia, that the godless have no concern for human rights). See

also Cong. Rec. H 1209 (daily ed. March 6, 1984) (remarks

of Rep. Siljander) (asserting that humanists have no morality

because they do not believe in God and, therefore, approve of

the rape of young girls).’ By falsely proclaiming that belief in

God is essential to the rule of law, petitioners’ displays serve

to strengthen and inculcate this prejudice.

The notion that moral and legal norms should protect all

humans, instead of merely those within one’s tribal, religious

or national community, is a fairly recent development in

human history, as the previous discussion of the Old Tes-

tament illustrates. See Singer, The Expanding Circle 50-51,

111-13. Many would credit the European Enlightenment for

the broad acceptance of the view that there are human rights,

and that all humans should fall within the scope of our moral

and legal norms. /d. at 114. Whatever the explanation, it is

fortunately true that respect for the lives, liberty and property

of others is a sentiment that now is not usually confined to

one’s own religious or ethnic group. What inspires a person

to accept the universality of ethics and the law is not

important. To the extent the Ten Commandments inspire

individuals to embrace appropriate moral ideals, they are to

be welcomed, just as the Sermon on the Mount, the Koran,

the Bhagavad-Gita, the Analects of Confucius, the wisdom of

Buddha and the moral philosophy of John Locke, David

Hume or Immanuel Kant should be welcomed when they

inspire individuals to treat others with appropriate respect and —

” Of Numbers 31:17-18 (discussing how Moses dealt with young

female captives).

25

consideration. But to proclaim that the Ten Commandments

provide the foundation for our morality and law is not only

irreconcilable with history, but it also threatens to take us

back to an era when norms were less inclusive - - when the

atheist, the Hindu, the Muslim and other “outsiders” were not

considered part of the moral community, and could be treated

accordingly. The Court should not allow the government to

give a privileged position to petitioners’ religious views.

CONCLUSION

For all the foregoing reasons, the Court should affirm the

judgment of the U.S. Court of Appeals for the Sixth Circuit.

Respectfully submitted,

RONALD A. LINDSAY *

815 Connecticut Avenue, N.W.

Suite 500

Washington, DC 20006-4004

(202) 463-2400

* Counsel of Record Counsel for Amici Curiae