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

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## Record

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

## Text

Supreme Court, U.S.

| J) FILED

DEC 8 - 2004

No. 03-1693

IN THE

Supreme Court of the United States

McCREARY 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 AMICUS CURIAE EAGLE FORUM EDUCATION &
LEGAL DEFENSE FUND IN SUPPORT OF PETITIONERS

PHYLLIS SCHLAFLY DOUGLAS G. SMITH
EAGLE FORUM EDUCATION & Counsel of Record
LEGAL DEFENSE FUND KIRKLAND & ELLIS LLP
7800 Bonhomme Avenue 200 East Randolph Drive
St. Louis, MO 63105 Chicago, IL 60601

(314) 721-1213 (312) 861-2000

Counsel for Amicus Curiae

December 8, 2004
WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

~~

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QUESTIONS PRESENTED

Whether the Establishment Clause is violated by a
privately donated display on government property that
includes eleven equal size frames containing an explanation
of the display along with nine historical documents and
symbols that played a role in the development of American
law and government where only one of the framed
documents is the Ten Commandments and the remaining
documents and symbols are secular.

Whether a prior display by the government in a
courthouse containing the Ten Commandments that was
enjoined by a court permanently taints and thereby precludes
any future display by the same government when the
subsequent display articulates a secular purpose and where
the Ten Commandments is a minority among numerous
other secular historical documents and symbols.

Whether the Lemon test should be overruled since the
test is unworkable and has fostered excessive confusion in
Establishment Clause jurisprudence.

Whether a new test for Establishment Clause purposes
should be set forth by this Court when the government
displays or recognizes historical expressions of religion.

TABLE OF CONTENTS
Page
TABLE OF CONTENTS .00ccccccorsscsscsasiounsessssessnsee il
TABLE OF AUTROORI TBD i nccccecccscsersnititmsiemmmmiaae iv
INTEREST OF AMICUS CURIA ........:ccccccsssccsssssecesesseeeesses l
SUMMARY OF ARGUREEING .cccecescisssstniscenssnttnemeaan 2
ARGUMEEN T ...00000c0-cccescsecesoresessesnsesaeseessnitnuiininniiannnnnnnn 3
I. The Lemon test is inconsistent with the original
meaning of the Establishment Clause and has
FOSUIIOE GR CORTRSIGR. ..cccccscssaseseceennmsaiaa 3
A. The Lemon test has caused confusion among
Cae DOWET COU. ...c0cccssc:sensersesneuiameaaanana 4
B. The lower courts invoking Lemon have
prohibited religious expression that the
Framers never thought constituted an
“establishment” of religion. ..............ccecceeeeeeeeeees 6
‘. The Lemon test is based on a flawed historical
ee 8

I]. The Establishment Clause was originally
understood as a federalism provisiON. ............::0s00000+ 9

A. The Establishment Clause prohibits federal
interference with state establishment of
Ee 10

B. Recognition of the jurisdictional nature of the
Establishment Clause would be consistent
with this Court’s jurisprudence enforcing
other aspects of the federal structure................... 19

Il]. | Even ander the Lemon test, the Establishment
Clause does not prohibit displays that have both
religious and historical significance. ................::00008 21

A. Displays of the Ten Commandments have
both religious and historical significance............ 21

Page
B. The test under Lemon is an objective one. .......... 23
eh diiericnanncnanensinsotacsooseuesese 26

iil
TABLE OF CONTENTS (Cont.)

iV

TABLE OF AUTHORITIES
Page(s)

Cases
ACLU of Kentucky v. McCreary County, Kentucky,

354 F.3d 438 (6™ Cir. 2003).........:sssssssssesesnees 23, 24
ACLU of Kentucky v. McCreary County, Kentucky,

361 F.3d 928 (6 Cir. 2004)........sssscssssssscesnseeseeeee 25
Agostini v. Felton,

ee i Be a i ctcincateserstnasetntettnnnantnnniconnens 4,21
American Family Ass'n, Inc. v. City and County of San

Francisco,

277 F.3d 1114 (9™ Cir. 2002).........csscssssccsssecnsecesses 5

Cantwell v. Connecticut,
rl I nis iniccinssitinicdlersentnininepeneianiiiiaibiiianiie 18

Capitol Square Review & Advisory Bd. v. Pinette,
Fee A FP ietinnciciicnniinnnaieniuibint 7, 23, 24

City of Elkhart v. Books,
oe Ge. Eee oe 22

Comm. for Pub. Ed. & Religious Liberty v. Regan,
444 U.S. 646 (1980) ......ccsccceccsecsceesseesseccseceseee 4, 26

Corp. of the Presiding Bishop of the Church of Jesus Christ
of Latter-Day Saints v. Amos,
ee Be ee inicasstssiseneccciniiectisenmienaibaidiininnaiads 4

County of Allegheny v. ACLU,
Fe i PP iteinininiscanitentinintsiitiionie 3, 23, 24

Vv
TABLE OF AUTHORITIES (Cont.)

Page(s)

Doe v. Beaumont Indep. Sch. Dist.,

240 F.3d 462 (5™ Cir. 2001) .....cccccccccscssesssseseeseeeeee 5
Edwards v. Aguillard,

RE ER Tee Oe 7, 22, 24
Elk Grove Unified Sch. Dist. v. Newdow,

eof Re. fs 3, 9, 10, 13, 18
Engel v. Vitale,

Pe Ce rcnscsccntinieineesntniinininediaiiicaaisii 6, 21
Everson v. Bd. of Educ.,

Se icecidtctastindniecaiieniatsiinasinicinininandascniide 8, 16
Ex parte Garland,

Fe ee criiccccsnnicintaieisinesnuabisnianaiiin 20
Gillette v. United States,

re a ee ei nsciistinsinicniniticeiiniastiartiaialinataiiaagensinniia 9
Gregory v. Ashcroft,

ae ey IE icissiitinsdeiiiieinaiasinaitarnbiiiaeilins 19, 20
Lamb's Chapel v. Center Moriches Union Free Sch. Dist.,

a iiriintenseciiieiincseiiaiiaintieiaateecitiniaind tials 3
Lee v. Weisman,

es re ee ninintinsanitunniantinnisaaminiaiunionins 3,9
Lemon v. Kurtzman,

a srenernnensscanbiniinniennsnssininiiivciiiia 4,9
Lynch v. Donnelly,

465 U.S. 668 (1984)...........ceeeeeees 5, 7, 9, 17, 21, 23

vi
TABLE OF AUTHORITIES (Cont.)

Page(s)

M'Culloch v. Maryland,

17 U.S. (4 Wheat.) 316-(1819).............cccccccssscceeees 19
Marsh v. Chambers,

ey: SeNe III icunsomnisisnsshceencasiadsiisonahaniion 22, 23
McCollum vy. Bd. of Educ.,

a, AEE osacesoncbiesemiadenidiadtuninneumanidaaininn 7
McGowan v. Maryland,

Be MITT ss sscicetieiscintyrnciinnonnaagineepeelanmnaetanh 25
Mercier v. City of LaCrosse,

305 F. Supp. 2d 999 (W.D. Wis. 2004) ................. 6
New York v. United States,

eG, I iiictictciciissnnnsenincseiitiatsiciann 19, 20, 21
Newdow v. United States Congress,

328 F.3d 466 (9" Cir. 2003), rev'd,

es ee I ciittinnscvinpenciceemnnensaseseninennnies 6
Printz v. United States,

a ne I cinneiesinsdsscihicsnasianiotinatinainnnaniis 19, 20
Rosenberger v. Rector and Visitors of Univ. of Va.,

Pe ee ee ticorntiitensethnnisensiamnuicninntinnnannin 3
Sante Fe Indep. Sch. Dist. v. Doe,

eee ee 3, 6, 23, 24
School Dist. of Abington Township v. Schempp,

374 U.S. 203 (1963)... 9, 10, 18, 21, 23, 25

Stone v. Graham,
es Se cicieaiecississceshcctusniinaninadalabinianinmeninis 23

vil
TABLE OF AUTHORITIES (Cont.)

Page(s)

Trammel v. United States,

I CT ciniisirsintiersipeiniaissitainataeitenimdeusieiie 20
United States v. Lopez,

og ere 19, 20
United States v. Morrison,

a I TE icsisiiccscnnsnhisssitniiiaienteinaiintanaeiaiions 19, 20
Wallace v. Jaffree,

elt Sl) | 4, 6, 8, 9, 16, 17, 25
Walz v. Tax Comm'n, |

Se NI cs iotethnenctiieianiaetint aula imal 4
Wynne v. Town of Great Falls, South Carolina,

i kb TL go 6
Zorach v. Clauson,

ee Be icnctententininnnarencenenioniinianisineii 22
Constitutional Provisions
MASS. CONST. OF 1780, art. ——_ RTERER VIS ens RNR rt en 8
ee Ms Ce AN, BI cosccrchibenissesnitiinnsccidecensniesiialipaiiiniion ll
See OR 4G, 8: ee ll
po A Rh ) nc 11
I a 10, 14, 17

Vill
TABLE OF AUTHORITIES (Cont.)

Page(s)
Other Authorities
AKHIL AMAR, THE BILL OF RIGHTS: CREATION AND
RECONSTRUCTION (1998) ..........:c0000008 11, 14, 16, 20

ANNALS OF CONG. (Joseph Gales ed., 1789)......... 12, 13, 17

CHESTER JAMES ANTIEAU ET AL., FREEDOM FROM
FEDERAL ESTABLISHMENT: FORMATION AND
EARLY HISTORY OF THE FIRST AMENDMENT

RELIGION CLAUSES (1964) .............ccccccccccsssssccceeee 18
GERARD V. BRADLEY, CHURCH-STATE RELATIONSHIPS IN

EEE Ce a oe eee ooo RN rat 11, 15
David O. Conkle, Toward a General Theory of the

Establishment Clause, =

82 Nw. U. L. REv. 1113 (1988)......... Re sy 15

DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS:
THE FEDERALIST PERIOD 1789-1801 (1997)........ 18

THE DEBATES IN THE SEVERAL STATE CONVENTIONS
(Jonathan Elliot ed., 2d ed. 1881) ...............ceeeeee 12

DONALD L. DREISBACH, THOMAS JEFFERSON AND THE WALL
OF SEPARATION BETWEEN CHURCH AND STATE

Donald L. Dreisbach & John D. Whaley, What the Wall
Separates: A Debate on Thomas Jefferson's ‘Wall
of Separation” Metaphor,

16 CONST. COMMENT. 627 (1999) ..000.........00cc00000 15

1x
TABLE OF AUTHORITIES (Cont.)

Page(s)

THE FEDERALIST NO. 39 (James Madison) ....................... 19
THE FEDERALIST No. 45 (James Madison) ....................... 12
Noah Feldman, The /ntellectual Origins of the

Establishment Clause,

TE Pec de Be CT, Fe GI cvccccensenevsseveseczessccnse 11
THE FOUNDERS’ CONSTITUTION (Philip B. Kurland

& Ralph Lerner eds., 1987)............:ccccceee 12, 14, 17

Mary Ann Glendon & Raul F. Yanes, Structural Free
Exercise, 90 MICH. L. REV. 477 (1991).................. x

PHILIP HAMBURGER, SEPARATION OF CHURCH
ee eciitntcncneninitiieiiniiasiaiincnininevinmnit 8

Hearing Before the Senate Comm. on the Judiciary,
gg TEE Ene 7

Hearing Before the Subcomm. on the Constitution of the
House Comm. on the Judiciary, 104" Cong. 49

Stanley Ingber, Religion or Ideology: A Needed
Clarification of the Religion Clauses,
GE SEAM. E,. FBV. TIS CIID occeccccssevscsesesseseseceseces 15

SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH
I OE ctencestiieensimisnninniennninen 10

Douglas Laycock, “Nonpreferential” Aid to Religion: A
False Claim About Original Intent,
27 WM. & MARY L. REV. 875 (1986)...............0 18

X xi

TABLE OF AUTHORITIES (Cont.) TABLE OF AUTHORITIES (Cont.)
Page(s) Page(s)
LEONARD W. LEVY, THE ESTABLISHMENT CLAUSE: William W. Van Alstyne, What Is “An Establishment
RELIGION AND THE FIRST AMENDMENT (1994)..... 11 of Religion”’?, 65 N.C. L. REV. 909 (1987) .......... 15

Michael W. McConnell, Establishment and Disestablishment
at the Founding, Part I: Establishment of Religion,
44 WM. & MARY L. REV. 2105 (2003)................. 15

Michael A. Paulsen, Religion, Equality, and the
Constitution: An Equal Protection Approach to
Establishment Clause Adjudication, ;

61 NOTRE DAME L. REV. 311 (1986).............0.00... 15

Richard C. Schrager, The Role of the Local in the Doctrine
and Discourse of Religious Liberty,
117 HARV. L. REV. 1810 (2004)... eee 15

Second Inaugural Address (March 4, 1805),
3 THE WRITINGS OF THOMAS JEFFERSON 378
(Andrew A. Lipscomb & Albert Ellery Bergh
is See actsiniindaciishictinniicdatsinisdiiaseiniashiasidessiieaiaa. 16, 17

Douglas G. Smith, The Establishment Clause:
Corollary of Eighteenth Century Corporate Law?,
Fe OP. UB, TRY, Bae Gr cerccrscescnsacscsccescccsees 15

STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST
FOR A CONSTITUTIONAL PRINCIPLE OF
RELIGIOUS FREEDOM (1995) ..............cceccceeeeees 15, 20

JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF
THE UNITED STATES (1833)................. 14, 18, 19, 20

MARK TUSHNET, RED, WHITE, AND BLUE: A CRITICAL
ANALYSIS OF CONSTITUTIONAL LAW (1988)......... 1] .

No. 03-1693

IN THE

Supreme Court of the United States

McCREARY 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 AMICUS CURIAE EAGLE FORUM EDUCATION &
LEGAL DEFENSE FUND IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE!

Eagle Forum Education and Legal Defense Fund (“Eagle
Forum ELDF”’) is an Illinois nonprofit corporation organized
in 1981. For over twenty years it has defended principles of

! This brief is filed with the written consent of all parties. Pursuant to
Supreme Court Rule 37.6, amicus states that no counsel for any party
authored this brief in whole or in part, nor did any person or entity, other
than amicus, its members, or its counsel make a monetary contribution to
the preparation or submission of this brief.

2

limited government, individual liberty, and moral virtue. To
ensure the guarantees of individual liberty enshrined in our
written Constitution, Eagle Forum ELDF advocates that the
Constitution be interpreted according to its original meaning.
Eagle Forum ELDF has supported longstanding principles of
morality in American society, and has consistently defended
the right of religious expression. Eagle Forum ELDF has a
strong interest in protecting the right to publicly display the
Ten Commandments.

SUMMARY OF ARGUMENT

The Lemon test has proven unworkable and restricts
religious liberty in a manner that is inconsistent with the
original meaning of the First Amendment. The
Establishment Clause was originally viewed as a federalism
provision that protected state establishments from
interference by the federal government. The Framers wisely
recognized that the individual states should remain free to
adopt diverse practices with respect to religion without the
threat of an established church at the national level. The
Lemon test is inconsistent with this original understanding.
It interjects the federal government into state decisionmaking
in a manner that restricts religious liberty.

Even under the Lemon test, however, the Ten
Commandments displays at issue here are constitutional.
This Court has recognized in decisions such as Marsh y.
Chambers that governmental action that has both religious
and historical significance does not violate the Establishment
Clause. Indeed, even in Stone v. Graham where the Court
held that a particular Ten Commandments display ran afoul
of the establishment prohibi*ion, it further held that the Ten
Commandments could be displayed as long as their historical
significance was conveyed along with their religious
meaning. The displays at issue here conveyed both a
historical and religious meaning. Accordingly, they do not
violate the Establishment Clause under the test set out in
Lemon.

3

The lower court’s ruling to the contrary was based on a
misapplication of this Court’s precedents. The lower court
concluded that the displays violated the Establishment
Clause only after engaging in a highly speculative analysis
concerning the subjective intentions of the proponents of the
displays. The test under Lemon, however, is an objective
one, focusing on whether a “reasonable observer” would
understand the display to constitute an “establishment” or
“endorsement” of a particular religion. Should the Court
retain the Lemon test despite its many flaws and lack of
historical foundation, it should clarify that the constitutional
test under Lemon is an objective one.

ARGUMENT

I. The Lemon test is inconsistent with the original
meaning of the Establishment Clause and has
resulted in confusion.

The Lemon test has proven unworkable. It has caused
confusion among the lower courts and led to curtailment of
religious expression that was never contemplated by the
Framers of the Establishment Clause.2 It should be

2 See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301,
2327 (2004) (Thomas, J., concurring in judgment) (noting the
“difficulties with our Establishment Clause cases”); Sante Fe Indep. Sch.
Dist. v. Doe, 530 U.S. 290, 319 (2000) (Rehnquist, C.J., dissenting)
(“Lemon has had a checkered career in the decisional law of this
Court.”); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S.
819, 861 (1995) (Thomas, J., concurring) (“{[O]ur Establishment Clause
jurisprudence is in hopeless disarray.”); Lamb's Chapel v. Center
Moriches Union Free Sch. Dist., 508 U.S. 384, 399 (1993) (Scalia, J.,
concurring in judgment) (noting “the long list of constitutional scholars
who have criticized Lemon”); Lee v. Weisman, 505 U.S. 577, 644 (1992)
(Scalia, J., dissenting) (Lemon “has received well-earned criticism from
many Members of this Court”); County of Allegheny v. ACLU, 492 U.S.
573, 655 (1989) (Kennedy, J., concurring in judgment in part and
dissenting in part) (refusing to “adopt[{} [the Lemon] test as our primary
guide in [holiday display cases]”); Corp. of the Presiding Bishop of the

4
abandoned in favor of a test that is more faithful to the
original meaning of the First Amendment.

A. The Lemon test has caused confusion among the
lower courts.

Under the three-part test articulated by the Court in
Lemon, governmental action is constitutional if it has a
“secular” purpose, its “principal or primary effect” is one
that “neither advances nor inhibits religion,” and it does not
“foster ‘an excessive government entanglement with
religion.’” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)
(quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)).
In certain contexts, the entanglement prong may be
considered as an aspect of the effects inquiry. Agostini v.
Felton, 521 U.S. 203, 232-33 (1997). Governmental actions
that run afoul of any of these three prongs may be barred as
unconstitutional under this test. The test has proven
particularly problematic given that each element is highly
malleable and is subject to a multitude of inconsistent and
confusing constructions.

In determining whether government action has a “secular
purpose,” for example, courts have relied on the subjective
intentions of the authors of government action to a greater or
lesser extent. Insofar as these subjective intentions guide the
constitutional analysis, the potential for disparate outcomes
increases as different judicial entities are called upon to
review similar government actions. See Wallace v. Jaffree,

Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 346
(1987) (O’Connor, J., concurring in judgment) (noting the “difficulties
inherent in the Court’s use of the test articulated in Lemon”); Wallace v.
Jaffree, 472 U.S. 38, 68 (1985) (O’Connor, J., concurring in the
judgment) (“Despite its initial promise, the Lemon test has proved
problematic.”); Comm. for Pub. Ed. & Religious Liberty v. Regan, 444
U.S. 646, 671 (1980) (Stevens, J., dissenting) (noting the “sisyphean task
of trying to patch together the ‘blurred, indistinct, and variable barrier’
described in Lemon’’).

5
472 U.S. 38, 108 (1985) (Rehnquist, J., dissenting)
(observing that the secular purpose prong “has proven
mercurial in application”).

Similarly, courts take different approaches in
determining whether government action “advances” or
“inhibits” religion. Often courts do not take sufficient
account of the inhibitory nature of governmental conduct on
religion or are overly deferential to government actors when
the question is whether they are inhibiting religious
practices. As a result, courts have upheld governmental
actions that are openly hostile to religion or religious belief.
See, e.g., American Family Ass'n, Inc. v. City and County of
San Francisco, 277 F.3d 1114, 1119, 1122 (9 Cir. 2002)
(upholding resolution denouncing the “Religious Right” and
various religious organizations for their position on the
morality of homosexuality after concluding that there was
“little guidance concerning what constitutes a primary effect
of inhibiting religion”).

Finally, there are disparate approaches to what
constitutes “excessive” entanglement given that
“{e]ntanglement is a question of kind and degree.” See
Lynch v. Donnelly, 465 U.S. 668, 684 (1984). Some courts
take a deferential view, while others take a more rigid
approach. Lacking sufficient guidance, the lower courts are
left to “puzzle through this analysis” on their own. See Doe
v. Beaumont Indep. Sch. Dist., 240 F.3d 462, 497 (s® Cir.
2001) (en banc) (Wiener, J., concurring in part and
dissenting in part) (“[T]o date the Supreme Court has offered
scant guidance as to what quality and quantity of
entanglement is excessive.”).

The fact that this Court has refused to apply a “single test
or criterion” in analyzing purported Establishment Clause
violations has only added to the confusion. See Lynch, 465
U.S. at 679. Not only are courts unsure how to apply the
factors identified in Lemon, but they are unsure whether and
to what extent those factors apply in individual cases.

6
Moreover, even in cases where the Lemon factors apply, the
test “has caused this Court to fracture into unworkable
plurality opinions, . . . depending upon how each of the three
factors applies to a certain state action.” Wallace, 472 U.S.
at 110 (Rehnquist, J., dissenting). The result has been a
string of decisions that are difficult to reconcile.

In sum, the Lemon test does not provide the well-defined
rules that are required to give the lower courts and
government actors clear guidance as to what is
constitutionally permissible state action. As such, it only
encourages wasteful, expensive, and divisive litigation.

B. The lower courts invoking Lemon have prohibited
religious expression that the Framers never
thought constituted an “establishment” of
religion.

More significantly, as a result of confusion among the
lower courts applying Lemon, there have been instances in
which state action that was never thought to constitute an
“establishment” of religion has been prohibited. Thus, for
example, courts have barred a reference to God in the pledge
of allegiance, Newdow v. United States Congress, 328 F.3d
466 (9° Cir. 2003), rev'd, 124 S. Ct. 2301 (2004), prayers
Opening town council meetings that mention Jesus Christ,
Wynne v. Town of Great Falls, South Carolina, 376 F.3d 292
(4" Cir. 2004), and a Ten Commandments monument
erected on private land sold to a fraternal organization by a
city government, Mercier v. City of LaCrosse, 305 F. Supp.
2d 999 (W.D. Wis. 2004).

As a result, the Lemon test often has interfered with
religious expression. This Court has emphasized that “the
common purpose of the Religion Clauses ‘is to secure
religious liberty.”” Sante Fe Indep. Sch. Dist. v. Doe, 530
U.S. 290, 313 (2000) (quoting Engel v. Vitale, 370 U.S. 421,
430 (1962)). It has recognized that religious speech is
protected to an equal extent whether on government or

-
private property. Capitol Square Review & Advisory Bd. v.
Pinette, 515 U.S. 753, 760 (1995). Nonetheless, the test the
Court outlined in Lemon has often resulted in an overt
hostility to religious expression, thereby bringing the courts
“into ‘war with our national tradition as embodied in the
First Amendment’s guaranty of the free exercise of
religion.”” Lynch, 564 U.S. at 673 (quoting McCollum v. Bd.
of Educ., 333 U.S. 203, 211-12 (1948)). See also Edwards v.
Aguillard, 482 U.S. 578, 617 (1987) (Scalia, J., dissenting)
(“We have not yet come close to reconciling Lemon and our
Free Exercise cases, and typically we do not really try.”).

Moreover, the chilling effect of potential litigation on
public religious expression has been significant.> Because
the Lemon test does not provide clear guidance, state actors
are often inclined to prohibit religious expression rather than
face the possibility of costly and protracted litigation. Thus,
not only is the Lemon test overly restrictive of religious
expression on its face, but in its application it often has
practical effects that the Court never intended.

3 See, e.g., Hearing Before the Senate Comm. on the Judiciary, 108"
Cong. (2004) (testimony of Professor Vincent Phillip Munoz), available
at http://judiciary.senate.gov/testimony.cfm?id=1218&wit_id=3523
(“The law’s vagueness makes state acknowledgement of religious
sentiment suspect. It enables special interest litigators, who are
professionally hostile toward religion, to file lawsuits to challenge almost
any state action that accommodates religion. The chilling effect of such
litigation and the mere threat [of] it is considerable... . Fearful local
officials and public school administrators have the incentive to eliminate
the public acknowledgement of religious sentiment in order to avoid
costly litigation.”); Hearing Before the Subcomm. on the Constitution of
the House Comm. on the Judiciary, 104" Cong. 49, 51-52 (1996)
(testimony of William A. Donohue, Catholic League for Religious and
Civil Rights) (maintaining that the potential for lawsuits has “create(d] a
chilling effect on the free speech rights of the Catholic clergy” and that
confusion about the status of the law has created “religious-free zones”).

8
C. The Lemon test is based on a flawed historical
metaphor.

At bottom, the problems with the Lemon test are directly
traceable to its lack of historical support. The test is
premised on the notion that the First Amendment creates a
“wall of separation” between church and state. See Everson
v. Bd. of Educ., 330 U.S. 1, 16 (1947). These terms,
however, are nowhere found in the constitutional text.
Moreover, this concept of church-state relations is at odds
with the historical record. “There is simply no historical
foundation for the proposition that the Framers intended to
build the ‘wall of separation’ that was constitutionalized in
Everson.’” Wallace, 472 U.S. at 106 (Rehnquist, J.,
dissenting).* Rather, they contemplated that there would be
a healthy interaction between religion and government.‘

Indeed, this Court has acknowledged that “[t]he
metaphor of a ‘wall’ or impassible barrier between Church

4 See also PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE 481
(2002) (“As should be clear from the contrast between separation and the
religious liberty guaranteed by the First Amendment, the constitutional
authority for separation is without historical foundation.”); Mary Ann
Glendon & Raul F. Yanes, Structural Free Exercise, 90 MICH. L. REV.
477, 485 (1991) (“With little or no support from text, history, or
tradition, the members of the Everson Court braided into the Religion
Clause the notions that the establishment provision was meant to create a
‘wall of separation’ between religion and the government, that it was to
be broadly construed to prohibit all government aid to religion, and that
government was required to be strictly neutral as between religion and
nonreligion.”).

> See, e.g., MASS. CONST. OF 1780, art. III (observing that “the happiness
of a people, and the good order and preservation of civil government,
essentially depend upon piety, religion, and morality” and that “these
cannot be generally diffused through a Community, but by the
institution of the publick worship of GOD, and of publick instructions
in piety, religion, and morality”).

9

and State, taken too literally, may mislead constitutional
analysis,” Gillette v. United States, 401 U.S. 437, 450
(1971), and that “the metaphor itself is not a wholly accurate
description of the practical aspects of the relationship that in
fact exists between church and state,” Lynch, 465 U.S. at
673. Even in Lemon, the Court observed that “total
separation is not possible in an absolute sense. Some
relationship between government and religious organizations
is inevitable.” 403 U.S. at 614. The experience under
Lemon—a history that is marked by controversy and
confusion—has demonstrated that the test is inherently
flawed.

II. The Establishment Clause was _ originally
understood as a federalism provision.

The difficulties associated with the Lemon test may
largely be avoided by returning to an interpretation of the
Establishment Clause that is more consistent with its original
meaning. “The text and history of the Establishment Clause
strongly suggest that it is a federalism provision intended to
prevent Congress from interfering with state establishments.”
Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301,
2330 (2004) (Thomas, J., concurring in judgment). As
such, the clause merely reiterates the fundamental division of |
power embodied in the original Constitution. The federal

6 See also Wallace, 472 US. at 106 (Rehnquist, J., dissenting)
(Establishment Clause “forbade establishment of a national religion, and
forbade preference among religious sects or denominations”); Lee, 505
U.S. at 644 (Scalia, J., dissenting) (“Our Religion Clause jurisprudence
has become bedeviled (so to speak) by reliance on formulaic abstractions
that are not derived from, but positively conflict with, our long-accepted
constitutional traditions.”); School Dist. of Abington Township v.
Schempp, 374 U.S. 203, 309-10 (1963) (Stewart, J., dissenting)
(Establishment Clause “was primarily an attempt to insure that Congress
not only would be powerless to establish a national church, but would
also be unable to interfere with existing state establishments”).

10
government was not delegated the authority to establish a
national church. Nor was it given the authority to interfere
with the state establishments.

A. The Establishment Clause prohibits federal
interference with state establishment of religion.

The Establishment Clause provides that Congress shall
pass no law “respecting an establishment of religion.” U.S.
CONST. amend. I. The term “respecting” was understood as
being synonymous with the term “relating.” See, e.g.,
SAMUEL JOHNSON, A_ DICTIONARY OF THE ENGLISH
LANGUAGL (1773). To “establish” meant “[t]o settle in any
privilege or possession; to confirm.” /d. A “privilege”, in
turn, was understood as a “[pjeculiar advantage,” an
“{iJmmunity”, or a “publick right.” Jd.

Thus, the text suggests that the Establishment Clause was
designed to prohibit Congress from passing any law that
would uniquely privilege a single religion by establishing it
at the national level. See Newdow, 124 S. Ct. at 2330
(Thomas, J., concurring in judgment). Such uniformity
would interfere with the religious liberty found in the several
states, which took diverse approaches to religious worship
and establishment of particular churches. The text, however,
“does not purport to protect individual rights.” /d. Rather, it
is a structural provision that prohibits the federal government
from undertaking certain prohibited actions. As such, it is
not subject to incorporation against the states pursuant to
Section One of the Fourteenth Amendment. Indeed,
incorporation of the Establishment Clause would “lead{[] to a
peculiar outcome”—.e., “[i]t would prohibit precisely what
the Establishment Clause was intended to protect—state
establishments of religion.” Jd. at 2331 (emphasis added).’

7 See also Schempp, 374 U.S. at 310 (Stewart, J., dissenting)
(incorporation of the clause would lead to the “irony that a constitutional
provision evidently designed to leave the States free to go their own way

11

The history of the clause further confirms this
construction. When the amendment was proposed and
ratified, several of the states maintained established
churches. /d.; AKHIL AMAR, THE BILL OF RIGHTS: CREATION
AND RECONSTRUCTION 32-33 (1998). Nonetheless, the
approaches to public measures regarding religion varied
widely from state to state. See LEONARD W. LEvy, THE
ESTABLISHMENT CLAUSE: RELIGION AND THE FIRST
AMENDMENT I]! (1994).8 While some states had exclusive
establishments, authorizing only a single established church,
a few states provided for multiple established religions. See,
e.g., S.C. CONST. OF 1778, art. XXXVIII (providing a
mechanism by which religious societies could become
“established” and “enjoy equal Privileges”); VT. CONST. OF
1777, art. XLI (“all religious societies” shall be “encouraged
and protected”). Other states, in contrast, prohibited the
establishment of any church in preference to another. See,
e.g., N.J. CONST. OF 1776, art. XIX (“[T]here shall be no
Establishment of any one Religious Church or denomination
in this State in Preference to any other.”).

should now have become a restriction upon their autonomy”); AMAR,
supra, at 41 (“As a more pure federalism provision, then, the
establishment clause seems considerably more difficult to incorporate
against states.”); GERARD V. BRADLEY, CHURCH-STATE RELATIONSHIPS
IN AMERICA 95 (1987) (incorporation of the Establishment Clause is
“logically impossible; it would be like trying to apply the Tenth
Amendment to the states”); MARK TUSHNET, RED, WHITE, AND BLUE: A
CRITICAL ANALYSIS OF CONSTITUTIONAL LAW 253 n.19 (1988) (“[T]o
the extent that the framers of the first amendment so ht to protect state
establishments against national action, it is not entirely coherent to say
that the amendment is now applicable to the states.”).

8 See also Noah Feldman, The Intellectual Origins of the Establishment
Clause, 77 N.Y.U. L. REV. 346, 381 (2002) (“Modes of establishments in
the colonies differed very widely, and the word ‘establishment’ was not
used consistently.”).

12

From the outset, the Founders recognized that the federal
government lacked authority to interfere with these state
establishments, and in particular lacked the authority to
establish a national church. The federal government was to
be a government of limited and enumerated powers. The
Framers emphasized that “[t]he powers delegated by the
proposed Constitution to the Federal Government are few
and defined.” THE FEDERALIST No. 45, at 292 (Clinton
Rossiter ed. 1961) (James Madison).

This general principle extended to matters of religion.
James Madison observed in the Virginia ratification debates
that “[t}here is not a shadow of night in the general
government to intermeddle with religion. Its least
interference with it, would be a most flagrant usurpation.” 5
THE FOUNDERS’ CONSTITUTION 88 (Philip B. Kurland &
Ralph Lerner eds., 1987). James Iredell similarly stated in
defending the proposed Constitution that “[i]f any future
Congress should pass an act concerning the religion of the
country, it would be an act which they are not authorized to
pass, by the Constitution, and which the people would not
obey. Everyone would ask, ‘Who authorized the
government to pass such an act?’”” 4 THE DEBATES IN THE
SEVERAL STATE CONVENTIONS 194 (Jonathan Elliot ed., 2d
ed. 1881). Thus, even before the Establishment Clause was
embodied in the text of the Constitution, there was a general
recognition that the federal government lacked the power to
interfere with the states’ regulation of religion.

Despite these structural guarantees, there remained some
concern that the federal government might usurp authority to
act with respect to the establishment of religion. As James
Madison observed in describing the proposed amendment,
certain of the state conventions “seemed to entertain an
opinion” that the Necessary and Proper Clause might enable
Congress to “make laws of such a nature as might infringe
the rights of conscience, and establish a national religion.” 1
ANNALS OF CONG. 758 (Joseph Gales ed., 1789). In order to
reinforce this jurisdictional division between the states and

13
the federal government and better secure religious liberty,
when crafting the Bill of Rights the Framers sought to make
this division of power express.

Congress went through several drafts in creating what
ultimately became the Establishment Clause. James
Madison initially proposed the following language: “The
civil rights of none shall be abridged on account of religious
belief or worship, nor shall any national religion be
established, nor shall the full and equal rights of conscience
be in any manner, or on any pretext, infringed.” /d. at 451.
The House Committee of the Whole subsequently debated
language that provided that “no religion shall be established
by law, nor shall the equal rights of conscience be
infringed.” /d. at 757. Madison indicated that this provision
meant that “Congress should not establish a religion, and
enforce the legal observation of it by law, nor compel men to
worship God in any manner contrary to their conscience.”
Id. at 758. According to Madison, “the people feared one
sect might obtain a pre-eminence, or two combine together,
and establish a religion to which they would compel others
to conform.” /d. At the same time, however, some “thought
the amendment altogether unnecessary, inasmuch as
Congress had no authority whatever delegated to them by the
constitution to make religious establishments.” Jd. at 757
(remarks of Roger Sherman).

Thus, the debates demonstrate that Congress believed
that the federal government lacked authority to establish a
national church or interfere with the state establishments.
See Newdow, 124 S. Ct. at 2330 (Thomas, J., concurring in
judgment). Nonetheless, in order to dispel any concerns,
Congress sought to make this division of power express.

In doing so, the Framers made clear that the federal
government would take no action that would restrict
religious practices in any way. Accordingly, the
Establishment Clause was coupled with a _ further
admonition—that Congress was prohibited from passing any

14
law that would impermissibly burden the “free exercise” of
religion. U.S. CONST. amend. I. The First Amendment
therefore guaranteed religious liberty more broadly—beyond
merely prohibiting the establishment of a national church
that might interfere with established churches in the several
States.

Early commentary on the Constitution confirmed this
understanding of the amendment. Justice Story in his
Commentaries on the Constitution stated that under the
Establishment Clause “the whole power over the subject of
religion is left exclusively to the state governments, to be
acted upon according to their own sense of justice, and the
state constitutions.” 3 JOSEPH STORY, COMMENTARIES ON
THE CONSTITUTION OF THE UNITED STATES § 1873 (1833).
The clause, according to Story, was merely designed to
“prevent any national ecclesiastical establishment.” /d.
§ 1871. Similarly, William Rawle, in his treatise on the
Constitution, concluded that “[t]he first amendment prohibits
congress from passing any law respecting an establishment
of religion, or preventing the free exercise of it. It would be
difficult to conceive on what possible construction of the
Constitution such a power could ever be claimed by
congress.” WILLIAM RAWLE, A VIEW OF THE CONSTITUTION
OF THE UNITED STATES (2d ed. 1829), reprinted in 5 THE
FOUNDERS’ CONSTITUTION 106 (Philip B. Kurland & Ralph
Lerner eds., 1987).

Recent historical scholarship has further confirmed the
jurisdictional nature of the amendment. Thus, the clauses
have been described as an “exercise in federalism,” as
making “explicit jurisdictional policies that were already
implicit in tne constitutional order,” and as preventing
federal “interfer[ence] with any _ state’s_ religious
establishment laws.”? Such analyses have shown that even

9 See, e.g., AMAR, supra, at 32 (Establishment Clause “prohibited the
national legislature from interfering with, or trying to dis-establish,

15

churches established by state and local governments”); BRADLEY, supra,
at 95 (Establishment Clause intended to make clear “that the national
government may neither effect an establishment nor interfere with states
that do”); STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A
CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM 17-18 (1995) (“The
religion clauses, as understood by those who drafted, proposed, and
ratified them, were an exercise in federalism.”); David O. Conkle,
Toward a General Theory of the Establishment Clause, 82 Nw. U. L.
REV. 1113, 1142 (1988) (noting the “federalistic motivation for the
establishment clause”); Donald L. Dreisbach & John D. Whaley, What
the Wall Separates: A Debate on Thomas Jefferson's “Wall of
Separation” Metaphor, 16 CONST. COMMENT. 627, 650 (1999)
(Establishment Clause “merely made explicit the jurisdictional policies
that were already implicit in the constitutional order”); Stanley Ingber,
Religion or Ideology: A Needed Clarification of the Religion Clauses, 41
STAN. L. REV. 233, 307 (1989) (Establishment Clause was designed “to
protect state religious establishments from national displacement”);
Michael W. McConnell, Establishment and Disestablishment at the
Founding, Part I: Establishment of Religion, 44 WM. & MARY L. REV.
2105, 2109 (2003) (Establishment Clause “prevented the newly formed
federal government from establishing religion or from interfering in the
religious establishments of the states”); Michael A. Paulsen, Religion,
Equality, and the Constitution: An Equal Protection Approach to
Establishment Clause Adjudication, 61 NOTRE DAME L. REV. 311, 317
(1986) (“The original intention behind the establishment clause .. .
seems fairly clearly to have been to forbid establishment of a national
religion and to prevent federal interference with a state’s choice of
whether or not to have an official state religion.”); Richard C. Schrager,
The Role of the Local in the Doctrine and Discourse of Religious Liberty,
117 HARV. L. R&v. 1810, 1823 (2004) (“[T]he Religion Clauses emerged
from the Founding Congress as local-protecting; the clauses were
specifically meant to prevent the national Congress from legislating
religious affairs while leaving loca! regulations of religion not only
untouched by, but also protected from, national encroachment.”);
Douglas G. Smith, The Establishment Clause: Corollary of Eighteenth
Century Corporate Law?, 98 Nw. U. L. REv. 239, 240 (2003)
(Establishment Clause “acts as a sort of ‘federalism-based’ guarantee that
merely delineates the proper roles of the federal and state governments
with respect to religious establishments”); William W. Van Alstyne,
What Is “An Establishment of Religion”’?, 65 N.C. L. REV. 909, 910-11
(1987) (under the Establishment Clause, “Congress would have no power
to interfere with any state’s religious establishment laws, whatever they
might be’’).

16

Thomas Jefferson, whose references to “separation” of
church and state form the basis for the Court’s Establishment
Clause jurisprudence, see Everson, 330 U.S. at 16, viewed
the clause as a purely jurisdictional provision. See AMAR,
supra, at 34 (observing that Jefferson “appears to have
understood the states’-rights aspects of the original
establishment clause”); DONALD L. DREISBACH, THOMAS
JEFFERSON AND THE WALL OF SEPARATION BETWEEN
CHURCH AND STATE 59-60 (2002) (“A careful review of
Jefferson’s actions throughout his public career suggests that
he believed, as a matter of federalism, that the national
government had no jurisdiction in religious matters, whereas
state governments were authorized to accommodate and even
prescribe religious exercises.”’).'°

In his Second Inaugural Address, for example, Jefferson
made clear that, while the federal government lacked
authority to pass measures pertaining to “religious
exercises,” the states remained free to do so:

In matters of religion, I have considered that its free
exercise is placed by the constitution independent of
the powers of the general [i.e., federal] government.
I have therefore undertaken, on no occasion, to
prescribe the religious exercises suited to it; but
have left them, as the constitution found them,
under the direction and discipline of State or Church

10 The relevance of Jefferson’s views is also questionable given that he
was not involved with drafting the First Amendment: “Thomas Jefferson
was of course in France at the time the constitutional Amendments
known as the Bill of Rights were passed by Congress and ratified by the
States. His letter to the Danbury Baptist Association was a short note of
courtesy, written 14 years after the Amendments were passed by
Congress. He would seem to any detached observer as a less than ideal
source of contemporary history as to the meaning of tiie Religion Clauses
of the First Amendment.” Wallace, 472 U.S. at 92 (Rehnquist, J.,
dissenting). See also DREISBACH, supra, at 98-99 (Jefferson’s “influence
on the actual text of the First Amendment was at most indirect’).

17
authorities acknowledged by the several religious —
societies.

Second Inaugural Address (March 4, 1805), 3 THE WRITINGS
OF THOMAS JEFFERSON 378 (Andrew A. Lipscomb & Albert
Ellery Bergh eds., 1905). Similarly, in a letter to Samuel
Miller, Jefferson maintained that “no power to prescribe any
religious exercise, or to assume authority in religious
discipline, has been delegated to the general government. It
must then rest with the states, as far as it can be in any
human authority.” Letter from Thomas Jefferson to Rev.
Samuel Miller (Jan. 23, 1808), in 5 THE FOUNDERS’
CONSTITUTION 98 (Philip B. Kurland & Ralph Lerner eds.,
1987).

This is not to say that Congress has no authority in
matters of religion. The First Amendment merely prohibits
legislation respecting an “establishment” of religion. See
U.S. CONST. amend. I. In fact, the Framers specifically
rejected more sweeping language that would have prohibited
Congress from passing any law “touching religion.” See |
ANNALS OF CONG. 759 (Joseph Gales ed., 1789).

In exercising its enumerated powers, Congress remained
free to enact measures that had the incidental effect of aiding
Or promoting religion. Thus, for example, the same
Congress that drafted the First Amendment took a variety of
measures that aided or promoted religion, including enacting
legislation providing for paid chaplains and proclaiming a
day of thanksgiving and prayer. Lynch, 465 U.S. at 674, 675
n.2; Wallace, 472 U.S. at 100-01 (Rehnquist, J., dissenting)
(citing 1 ANNALS OF CONG. 914 (1789)). Indeed, Justice
Story concluded that “the reneral, if not the universal
sentiment in America was, that Christianity ought to receive
encouragement from the state, so far as was not incompatible -
with the private rights of conscience, and the freedom of

18
religious worship.” 3 JOSEPH STORY, COMMENTARIES ON
THE CONSTITUTION OF THE UNITED STATES § 1868 (1833).!!

Nor does this mean that there are no constraints on state
activity with respect to religion. Such activities would still
be subject to the prohibitions found in the Free Exercise
Clause as incorporated under the Fourteenth Amendment.
See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).'2 To
the extent a state engaged in activity that had the effect of
impairing citizens’ right to exercise their religious
preferences, such actions would be constitutionally
prohibited. See Newdow, 124 §S. Ct. at 2332 (Thomas, J.,
concurring in judgment) (observing that “coercive state
establishments” might be _ constitutionally prohibited);
Schempp, 374 U.S. at 312 (Stewart, J., dissenting) (“That the
central value embodied in the First Amendment—and, more
particularly, in the guarantee of ‘liberty’ contained in the
Fourteenth—is the safeguarding of an individual’s right to
free exercise of his religion has been consistently
recognized.”’).

'! See also CHESTER JAMES ANTIEAU ET AL., FREEDOM FROM FEDERAL
ESTABLISHMENT: FORMATION AND EARLY HISTORY OF THE FIRST
AMENDMENT RELIGION CLAUSES 160 (1964) (“A policy of withdrawing
the power of the Federal Government to aid religion was not
contemplated and would have found emphatic disapproval.”); DAVID P.
CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD

1789-1801, at 113 (1997) (“There was nothing either in the text of the _

provision . . . or in Madison’s explanation of its meaning to suggest
either that it forbade Congress to provide impartial support to religion
in general or that it entitled those with religious scruples to exemptions
from generally applicable laws.”); Douglas Laycock, “Nonpreferential”
Aid to Religion: A False Claim About Original Intent, 27 WM. & MARY
L. REV. 875, 909 (1986) (“[T]he establishment clause was debated on the
assumption that the government may have some power to aid religion.”).

12 The Free Exercise Clause is properly subject to incorporation, unlike
the Establishment Clause, because it acts not as a structural gurantee,
but rather protects individual liberties. See AMAR, supra, at 254-56.

19
B. Recognition of the jurisdictional nature of the
Establishment Clause would be consistent with
this Court’s jurisprudence enforcing other aspects
of the federal structure.

Recognition of the jurisdictional nature of the
Establishment Clause would be consistent with the Court’s
jurisprudence in other areas in which it has given renewed
emphasis to the structural guarantees embodied in the
Constitution. See, e.g., United States v. Morrison, 529 U.S.
598 (2000); United States v. Lopez, 514 U.S. 549 (1995);
New York v. United States, 505 U.S. 144 (1992).

It is “incontestible that the Constitution established a
system of ‘dual sovereignty.”” Printz v. United States, 521
U.S. 898, 918 (1997) (quoting Gregory v. Ashcroft, 501 U.S.
452, 457 (1991)). While the states “surrendered many of
their powers to the new Federal Government, they retained
‘a residuary and inviolable sovereignty.’” Jd. at 918-19
(quoting THE FEDERALIST NO. 39, at 245 (James Madison)).
This fundamental aspect of our constitutional system is
“reflected throughout the Constitution’s text.” /d. at 919. In
particular, residual state sovereignty is “implicit .. . in the
Constitution’s conferral upon Congress of not all
governmental powers, but only discrete, enumerated ones.”
Id. See also M’Culloch v. Maryland, 17 U.S. (4 Wheat.)
316, 405 (1819) (“This government is acknowledged by all,
to be one of enumerated powers.”).

Because the Constitution is “‘an instrument of limited
and enumerated powers, it follows irresistibly, that what is
not conferred, is withheld, and belongs to the state
authorities.” New York, 505 U.S. at 156 (quoting 3 JOSEPH
STORY, COMMENTARIES ON THE CONSTITUTION OF THE
UNITED STATES 752 (1833)). Indeed, this has been “the
Court’s consistent understanding.” /d.

This aspect of our constitutional structure represents a
“unique contribution of the Framers to political science and

20

political theory.”” Printz, 521 U.S. at 921 n.11 (quoting
Lopez, 514 U.S. at 575). The “separation of the two spheres
is one of the Constitution’s structural protections of liberty.”
Id. at 921. “Just as the separation and independence of the
coordinate branches of the Federal Government serves to
prevent the accumulation of excessive power in any one
branch, a healthy balance of power between the States and
the Federal Government »\'] reduce the risk of tyranny and
abuse from either front.’ New York, 505 U.S. at 181-82
(quoting Ashcroft, 501 U.S. at 458).

In implementing this division of authority, “[t]he
Constitution requires a distinction between what is truly
national and what is truly local.” Morrison, 529 U.S. at 617-
18. Areas of fundamentally local concern such as marriage,
Trammel v. United States, 445 U.S. 40, 50 (1980), domestic
relations, id., and criminal law, Lopez, 514 U.S. at 561 n.3,
were reserved to the states.

Religion—and in particular decisionmaking by local
governmental bodies concerning the public display of
symbols that have religious meaning—is just such a uniquely
local matter. Indeed, “it is common knowledge that the
Constitution’s framers thought that religion was a matter for
the states, not for the national government... .” SMITH,
supra, at 119. See also AMAR, supra, at 34 (observing that
the Establishment Clause “calls for the issue [of
establishment] to be decided locally’). | Under our
Constitution, “the whole power over the subject of religion is
left exclusively to the State governments, to be acted upon
according to their own sense of justice and the State
constitutions.” Ex parte Garland, 71 U.S. 333, 397-98
(1867) (quoting STORY, supra, § 1878).

The same considerations that drove the Framers to
reserve the power over matters of religion to the states apply
today. There are dramatic cultural and religious differences
both among and within the states. The Constitution’s
reservation of local control over matters touching upon

21
religion wisely allows for a diversity of practices instead of
imposing a judicially-enforced, uniform rule.

These structural principles, if not dispositive, should at a
minimum inform the Court’s Establishment Clause
jurisprudence. Due regard should be given to the states’
traditional role in matters of religion, particularly where, as
here, the issue before the Court implicates local control over
state or municipal property. Cf New-York, 505 U.S. at 161
(federal government may not “commandeer” or direct local
authorities).

Ill. Even under the Lemon test, the Establishment
Clause does not prohibit displays that have both
religious and historical significance.

Even under the Lemon test—flawed as it is—the display
of the Ten Commandments does not violate the
Establishment Clause. This Court has emphasized that
where public displays have both religious and _ historical
significance, they do not constitute an “establishment” of
religion. All that is required is that a display not be
“motivated wholly by religious considerations.” Lynch, 465
U.S. at 680. That:is the case here where the Ten
Commandments have played an important role in the history
of Western Civilization and the development of our legal
system.

A. Displays of the Ten Commandments have both
religious and historical significance.

The Court has consistently recognized that “religion has
been closely identified with our history and government,”
Schempp, 374 U.S. at 212, that “[t]he history of man is
inseparable from the history of religion,” Engel, 370 U.S. at
434, and that “[i]nteraction between church and state is
inevitable,” Agostini, 521 U.S. at 233. There has been “an
unbroken history of official acknowledgment by all three
branches of government of the role of religion in American
life from at least 1789.” Lynch, 465 U.S. at 674. At bottom,

22
“[w]e are a religious people whose institutions presuppose a
Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313
(1952).

In particular, the Court has upheld public practices that
have both historical and religious significance. See Marsh v.
Chambers, 463 U.S. 783 (1983). In Marsh, for example, the
Court eschewed rigid application of the three-part Lemon test
and upheld the Nebraska legislature’s practice of opening
legislative sessions with a prayer on the ground that it was
“deeply embedded in the history and tradition of this
country.” Jd. at 786. In doing so, the Court noted the
“unambiguous and unbroken history of more than 200 years”
supporting such practices, which the Court concluded
established “the practice of opening legislative sessions with
prayer” as “part of the fabric of our society.” Jd. at 792.

So, too, the Ten Commandments are part of the “fabric
of our society” in that they have played a significant
historical role not only in the development of major religions
and systems of secular morality, but also our legal system.
Cf id. at 783 (legislative prayer was a “tolerable
acknowledgment of beliefs widely held among the people of
this country”). As a direct result of their significant
historical role in our society, the Commandments are posted
on many public buildings, including this Court, the U.S.
Capitol, various state capitols, and numerous federal
courthouses. See Aguillard, 482 U.S. at 593-94 (observing
that the Ten Commandments have not “played an
exclusively religious role in the history of Western
Civilization”); City of Elkhart v. Books, 121 S. Ct. 2209,
2211 (2001) (Rehnquist, C.J., dissenting) (“Undeniably, . . .
the Commandments have secular significance . . . because
they have made a substantial contribution to our secular legal
codes.”).

Even in Stone where the Court strictly applied the three-
part Lemon formula and held that a specific Ten
Commandments display in a public school violated the

23

Establishment Clause, it further observed that such a display
would have been appropriate if it had been “integrated into
the school curriculum . . . in an appropriate study of history,
civilization, ethics, comparative religion, or the like.” Stone
v. Graham, 449 U.S. 39, 42 (1980) (citing Schempp, 374
U.S. at 225). The Court concluded that the particular Ten
Commandments display before it was unconstitutional only
because it “had no secular legislative purpose.” Jd. at 41.
Here, the situation is much different, given that the displays _
were associated with the historical role the Ten
Commandments played in the developmént of legal and
moral principles that have had a significant impact on
Western Civilization. See ACLU of Kentucky v. McCreary
County, Kentucky, 354 F.3d 438, 443 (6" Cir. 2003).

Indeed, since the Court issued its decision in Stone and
its subsequent ruling in Marsh, it has repeatedly upheld
displays of religious symbols that manifest both a religious
and secular purpose. See, e.g., Pinette, 515 U.S. at 766
(upholding display of a cross); Lynch, 465 U.S. at 684
(upholding display of a créche); County of Allegheny vy.
ACLU, 492 U.S. 573, 592 (1989) (upholding display of a
menorah). To exclude the Ten Commandments—part of the
foundation of our modern legal system—would be
inconsistent with these prior rulings. Moreover, it would
cleanse from the public square an important aspect of our
nation’s history.

B. The test under Lemon is an objective one.

The lower court’s ruling to the contrary was the result of
its misapplication of the Lemon test. The test under Lemon
is an objective one. Sante Fe Indep. Sch. Dist., 530 U.S. at
308 (test based on an “objective observer”); Lynch, 465 U.S.
at 690 (O’Connor, J., concurring) (Court looks to “the
‘objective’ meaning of the [government’s] statement in the
community”). The constitutional analysis is based on the
perceptions of a reasonable observer. Lynch, 465 U.S. at

24
691-94 (O’Connor, J., concurring). See also County of
Allegheny, 492 U.S. at 592. _

The reasonable observer “is similar to the ‘reasonable
person’ in tort law, who ‘is not to be identified with any
ordinary individual, who might occasionally do unreasonable
things,’ but is ‘rather a personification of a community ideal
of reasonable behavior, determined by the [collective] social
judgment.’” Pinette, 515 U.S. at 779-80 (O’Connor, J.,
concurring in judgment) (quoting W. KEETON ET AL.,
PROSSER AND KEETON ON LAW OF Torts 175 (5" ed. 1984)).
Consequently, the Court does not “ask whether there is any
person who could find an endorsement of religion, whether
some people may be offended by the display, or whether
some reasonable person might think [the State] endorses
religion.”” Jd. at 780 (emphasis in original) (internal
quotations omitted).'? Rather, the standard is based on the
perceptions of an objective observer. Sante Fe Indep. Sch.
Dist., 530 U.S. at 308.

The lower court, in contrast, rested its decision on an
extensive analysis of what it believed to be the subjective
purposes of government officials. It pointed to their earlier
attempts to erect “constitutionally invalid displays,”
concluding that these prior attempts “imprinted the
defendants’ purpose, from the beginning, with an
unconstitutional taint.” McCreary County, 354 F.3d at 457
(internal quotations omitted). The lower court’s reliance on
this subjective analysis means, in effect, that no display of
the Ten Commandments by these government actors would

!3 While courts may ascertain whether a state’s articulation of a secular
purpose is a “sham”, the “Court is normally deferential to a State’s
articulation of a secular purpose.” Aguillard, 482 U.S. at 586-87.
Moreover, this aspect of the Court’s jurisprudence should not be
construed as an invitation to engage in a wide-ranging inquiry into the
subjective beliefs of state actors. Such an invitation is inconsistent with
this Court’s precedents and would only lead to additional confusion.

25

be possible given that, according to the court, they had
attempted to erect “unconstitutional” displays. Such a ruling
is not supported by this Court’s precedents. In determining
whether the government intends to convey a message of
endorsement or disapproval of religion, “a court has no
license to psychoanalyze the legislators.” Wallace, 472 U.S.
at 74 (O’Connor, J., concurring in the judgment). Rather,
courts must apply an objective analysis based on the
perceptions of a reasonable observer.

Indeed, one could view these attempts in just the
opposite way: The government officials in this case went to
great lengths to comply with the judicially-created
requirements under the Establishment Clause. Their
attempts to comply with these often vague requirements are
now being used as a sword against them. Such a test is
fundamentally unfair and should not be sanctioned as a
constitutional requirement.

In fact, this Court has made clear that where government
action was originally motivated by a solely religious
purpose, which was subsequently supplemented by a secular
purpose, there is no Establishment Clause violation. Thus,
for example, the Court has upheld Sunday Laws that
originally required the closure of businesses for wholly
religious reasons. See McGowan v. Maryland, 366 U.S. 420
(1961). The Court concluded that, while the original purpose
of such laws may have been to promote religious
observance, they subsequently took on in addition a secular
purpose—to provide a day of rest and ensure the health and
tranquility of the community. See Schempp, 374 US. at
263-64 (Brennan, J., concurring).

At bottom, the subjective test implemented by the court
below “not only misapplies the law, it also invites a new
round of First Amendment challenges to religious texts and
symbols that are nearly ubiquitous in non-schoolhouse public
buildings throughout the nation, particularly courthouses.”
ACLU of Kentucky v. McCreary County, Kentucky, 361 F.3d

26

928, 933 (6" Cir. 2004) (Boggs, C.J., dissenting). When the
constitutional test requires the courts to analyze the
subjective, and often hidden, intentions of government actors
it is sure to spur unwarranted and particularly divisive
litigation. See Comm. for Pub. Ed. & Religious Liberty v.
Regan, 444 U.S. 646, 662 (1980) (observing _ that
“Establishment Clause cases . . . stir deep feelings”). The
courts and government actors require an objective test that
provides them with clear guidance.

CONCLUSION

For the foregoing reasons, Eagle Forum ELDF
respectfully requests that the Court uphold the states’
legitimate authority to display the Ten Commandments and
reverse the decision below.

Respectfully submitted,
PHYLLIS SCHLAFLY DOUGLAS G. SMITH
EAGLE FORUM EDUCATION & Counsel of Record
LEGAL DEFENSE FUND KIRKLAND & ELLIS LLP
7800 Bonhomme Avenue 200 East Randolph Drive
St. Louis, MO 63105 Chicago, IL 60601
(314) 721-1213 (312) 861-2000

Dated: December 8, 2004

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0005%3A24. Public record. Not legal advice.