# 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%3A23

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0005%3A23. Public record. Not legal advice.