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

a

No. 03-1693

Supreme Court. U.S.

— DEC 8 - 2004 |

Jn The OFFICE OF THE CLERK |

Supreme Court of the United States

¢

McCREARY COUNTY, KENTUCKY; JIMMIE GREENE,

as McCreary County Judge Executive; PULASKI

COUNTY, KENTUCKY; DARRELL BESHEARS,

as Pulaski County Judge Executive,

Petitioners,

Vv.

ACLU OF KENTUCKY, et ai.,

Respondents.

+

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

¢

BRIEF AMICUS CURIAE OF THE FAMILY

RESEARCH COUNCIL, INC. AND FOCUS ON THE

FAMILY IN SUPPORT OF THE PETITIONERS

+

GERARD V. BRADLEY

NOTRE DAME LAW SCHOOL

Notre Dame, Indiana 46556

(219) 631-8385

Counsel to the Family Research

Council and Focus on the Family

ROBERT P. GEORGE

Counsel of Record

ROBINSON & MCELWEE

500 Virginia Street, East Suite 600

Charleston, West Virginia 25326

(304) 344-5800

Of Counsel |

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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INTEREST OF THE AMICUS CURIAE ................... 1

SUMMARY OF ARGUMENT...................cccseceeeeeeeeeens 2

TTI scenthinicenlclnneidiaanisdabiadanbeliaiadenndlprieliiuauineees 3

I. The Sixth Circuit Misunderstood the Mes-

sage of the Documents on Display, Which Is

That Biblical Ethical Monotheism Under.

girds Our Basic Rights and Form of Govern-

II. This Court’s Precedents Sanction Govern-

mental Displays Which Recognize the De-

pendence of Our Legal Institutions Upon

Biblical Ethical Monotheism ......................0004 8

III. Precedents From This Court and Lower

Federal Courts Establish That the Bible and

Biblical Morality Have a Unique Place in

Our Culture and in Our Legal Tradition ........ 13

IV. The Sixth Circuit’s Mistakes Entirely Un-

GermMine Ite Comciusies ......cccccscovcccreseoccecesvees 15

V. This Court’s Precedents, Including Stone v.

Graham, Establish the Test in This Case:

The Displays Must Not Purposely Advance a

I I oo ccineicunciidenaenotmebepenones 20

te enicennetennnnsccenessnnstisccandationpvosnectncstoemoses 25

ll

TABLE OF AUTHORITIES

Page

CASES

ACLU of Kentucky v. McCreary County, 354 F.3d

438 (Gita Clip. BBG). 21crcecccssesssnnecnsntenatsaaneane passim

Bowen v. Kendrick, 487 U.S. 589 (1988).............ccccceeeeeeeee 20

City of Elkhart v. Books, 121 S. Ct. 2209 (2001)......... 17, 22

Crockett v. Sorenson, 568 F. Supp. 1422 (W.D. Va.

BOBB) ...020ccccccccoceseresesseessenseentensednnennsinnnnnnnnnnnnnnnnnnnnn 15

Edwards v. Aguillard, 482 U.S. 578 (1987)..............000 3, 24

Everson v. Board of Education, 330 U.S. 1 (1947).......... 7,8

Gibson v. Lee County Sch. Bd., 1 F. Supp. 2d 1426

(BE.D. FR. 1GGG)...cccevescossesccssesenvesaimusmmnnnaninnane 14

Lynch v. Donnelly, 465 U.S. 668 (1985)............0cc0eeeee 12, 20

Sch. Dist. of Abington Township v. Schempp, 374

UB. 308 (1663) ...000ccccccessceresessensannsnuunannnnnae passim

Stone v. Graham, 449 U.S. 39 (1981)........ccccceeeeeeeees passim

Wallace v. Jaffree, 472 U.S. 38 (1985) ........cccceceeceeeeees 20, 21

Wiley v. Franklin, 468 F.Supp. 133 (E.D. Tenn.

| 14, 15

Zorach v. Clauson, 343 U.S. 306 (1952)..........ccccccceeeeeeceeeeee 8

CONSTITUTIONAL PROVISIONS

U.S. Cosem?. amend. I ....1..:.ccscsesesensesessnusniennnninnnnnnannnnnnn 5

BAY. COSSBT. 1pttRE, .....0<cccccccesncsssionnesiiasensinanannnnnnnnnnnnn 13

ee -

iii

TABLE OF AUTHORITIES -— Continued

OTHER AUTHORITIES

ADAM NICOLSON, GOD’S SECRETARIES: THE MAKING

OF THE KING JAMES BIBLE (2003) ...................ccceeceeeeeeees 25

Bible:

acacia snnesecessncnsecosnccoos passim

Daniel L. Driesbach, Jn Search of a Christian

Commonwealth: An Examination of the Selected

Nineteenth-Century Commentaries on References

to God and the Christian Peligion in the United

States Constitution, 48 BAYLOR L. REV. 927

Madison’s Memorial and Remonsirance........... 7, 13, 15, 16

Transcript of Oral Argument at 24, Murray v.

Curlett, 374 U.S. 203 (1963) (No. 119), in ORAL

ARGUMENT OF THE SUPREME COURT OF THE

UNITED STATES: THE WARREN CouRT, 1953

a. scunsnsoonsscsoes 19

1

INTEREST OF THE AMICUS CURIAE'’

Family Research Council, Inc. [hereinafter

“FRC”] is a non-profit, research and educational organi-

zation dedicated to articulating and advancing a family-

centered philosophy of public life. In addition to providing

policy research and analysis for the legislative, executive,

and judicial branches of the federal government, FRC

seeks to inform the news media, the academic community,

business leaders, and the general public about family

issues that affect the nation.

FRC’s legal and public policy experts are continually

sought out by federal and state legislators for assistance

and advice. FRC has participated in numerous amicus

curiae briefs in the United States Supreme Court, lower

federal courts, and state courts.

FRC represents thousands of constituents in its

efforts to protect the institutions of marriage and family in

federal and state law. Toward that end, FRC has worked to

strengthen the legal definition of marriage as being a

union of one man and one woman, as it always has been in

the United States. FRC has conducted extensive research

and produced numerous publications regarding the tradi-

tions of legal, cultural, moral, and religious support for

marriage, as well as regarding the tangible benefits of

traditional marriage for individuals and society.

* The parties have consented to the filing of this brief.

Counsel for a party did not author this brief in whole or in part. No

person or entity, other than the Amicus Curiae, its members, or its

counsel made a monetary contribution to the preparation and submis-

sion of this brief.

2

Focus on the Family [hereinafter “FOF”] is a

non-profit communications and educational organization

dedicated to the preservation of marriage, parenting, and

the nurturing home. FOF produced a number of national

and international radio broadcasts on family and cultural

issues, publishes a number of magazines for family mem-

bers of various ages and stages and a wider range of books

as well as a website: family.org.

Millions of families in America and abroad rely on

FOF for help in understanding the dynamics of their own

family as well as what is happening with the family

culturally and how they help strengthen both.

¢

SUMMARY OF ARGUMENT

The Sixth Circuit’s analysis of both the displays and

the pertinent law was grievously mistaken. Contrary to

what that court held, many Supreme Court precedents

confirm what historians of America have long maintained:

our constitutional and legal traditions cannot be accu-

rately understood without recognizing their roots in a

theistic worldview. But not just any theistic tradition; as

this Court has said repeatedly, our beliefs in human rights

and limited government, along with other fundamental

convictions, have deep roots in the ethical monotheism of

the Bible. The Ten Commandments are the central expres-

sion of this worldview.

The document displays challenged below recognize

what this Court’s cases have long taught. The displays

fairly and impartially indicate that biblical ethical mono-

theism underlies American constitutional and legal tradi-

tions. The displays studiously avoid advancing, endorsing,

3

or otherwise vouching for the Bible as truly being the

Word of God, or the religions based upon it. The displays

therefore comport with all this Court’s relevant prece-

dents, as they were articulated most perspicaciously by

Justice Powell in the case of Edwards v. Aguillard, 482

U.S. 578, 606-07 (1987) (Powell, J., concurring).

o

ARGUMENT

I. The Sixth Circuit Misunderstood the Message

of the Documents on Display, Which Is That

Biblical Ethical Monotheism Undergirds Our

Basic Rights and Form of Government.

Applying what it believed to be the Lemon test, the

Sixth Circuit held that the Kentucky displays had two

constitutional defects: a “predominantly” religious purpose

and the effect of “endorsing” religion. Both defects de-

pended upon the court’s conclusion that the Decalogue’s

“connection” to the other documents was not “demon-

strated.” Thus, the Sixth Circuit found no “secular” pur-

pose because the Ten Commandments “lack[ed] a

demonstrated analytical or historical connection with the

other documents.” But the court did find an “endorse-

ment” of religion because of “the complete lack of any

analytical connection” between the Decalogue and the

other displayed texts.° A “reasonable observer cannot

connect them,” concluded the Sixth Circuit.*

* ACLU of Kentucky v. McCreary County, 354 F.3d 438, 451 (6th

Cir. 2003).

* Id. at 460.

* Id.

4

The requisite “connection” is there. Unfortunately, the

Sixth Circuit looked in the wrong place for the wrong sort

of “connection.” Unsurprisingly, it was disappointed. But a

reasonable observer has no trouble seeing what the array

of documents is about, and how the Ten Commandments

fit right in.

A reasonable observer could be any member of this

Court on a working day. The frieze in the Supreme Court

chamber depicts eighteen individuals presented to the

viewer as constituents of a class, as a multi-member unit

or set. These figures - Hammurabi, Confucius, Justinian,

Moses, Muhammad, and the rest — are a diverse lot,

hailing from vastly different cultures and historical eras,

possessed of different worldviews. What are they doing

together in the frieze? What is the set-defining character-

istic? They are all male, deceased, influential. But the

reasonable viewer does not conclude that the frieze is

simply about powerful dead men. At least three of the

figures — Moses, Confucius, and Muhammad - are great

religious figures. Most, however, are not. So the reasonable

viewer does not take the set’s defining characteristic to be

religion. A reasonable observer who knows a little history

sees before long that the frieze depicts a set of great

human Lawgivers.

Consider now a reasonable observer of the Kentucky

displays. Our observer sees eleven equal size frames

containing a total of nine documents. All nine are pre-

sented in the same manner. None is held out to the eye as

primary, special, separate. Any reasonable observer would

conclude — as does anyone who views the Supreme Court

frieze — that the individual specimens are members of a

set.

5)

What is this set’s principle of unity? Many were

produced by recognized political authority. But the Star

Spangled Banner was not. Neither was the Decalogue. The

Mayflower Compact and the Declaration of Independence

were not, either: they are manifestos by people on the cusp

of political organization. Some of the “political” documents

are scarcely more than prayers — the Kentucky Constitu-

tion Preamble and the National Motto are two examples.

Two (the Decalogue and the Magna Carta) are foreign

imports. The Mayflower Compact has a foot on two shores,

composed by English settlers anchored off the Massachu-

setts coast.

What do the individual members of this set have in

common? Neither Lady Justice nor the Bill of Rights

includes an explicit reference to God. All the others do, and

the First Amendment refers to “religion.” Both Lady

Justice and the Bill of Rights make sense, moreover, in

light of background convictions about equal human dig-

nity, unconditional human rights, and limited government

instituted for the people. These convictions suggest, if they

do not imply, an objective moral order: rights do not

depend upon power or prestige or upon some majority’s (or

powerful minority’s) shifting view of what is advantageous

to them. Human dignity and human rights have sources

beyond the willing and wishes of people.

The God spoken of by the Kentucky documents is

transcendent and intelligent, a greater-than-human

source of meaning and value. The documents as a whole

show that their human authors considered themselves

dependent upon this God’s continuing care. This care for

humans according to a divine plan is most often called

Providence, and the documents reflect heartfelt recogni-

tion of it. “In God We Trust.” Many of the texts — the

6

Preamble, the Mayflower Compact, the first part of the

Decalogue — make clear that humans owe God thanks,

prayer, and homage.

A reasonable observer sees that the Kentucky displays

contain a great deal of divergent detail, including much

that is time- and place-bound, including complaints about

particular temporal rulers, contingent political plans and

the like. The reasonable observer’s eye sees as well much

that is grander, more exalted, even timeless. This ob-

server's eye fixes upon the pervading common themes:

God, and God’s direction of and care for human persons.

The documents are also pervaded by law, nomos, what is

right to do, small and large: What is the morally sound

way for government to treat people? How do people joined

together in political community properly treat each other?

What does justice require? How do we show respect for all

humankind? What has God said to help us answer these

important questions?

The reasonable observer sees that a unifying theme of

the Kentucky display is the objective moral law as the

effect or deliverance of God — ethical monotheism. The

reasonable observer sees, too, that the documents evince a

particular ethical monotheism, and its specific influence

upon a particular nation: the United States of America.

The reasonable observer concludes that the documents’

unifying theme is that biblical ethical monotheism has

shaped our basic law and our political tradition.°

* The [ .calogue has a limited priority here, because it is the

Bible’s mos. concrete expression of ethical monotheism. It is nonethe-

less Wlustrative of that whole cultural and political worldview — biblical

ethical monotheism -— which shaped our tradition. To their credit,

Defendants did not seek to highlight, or even to depict, this limited

(Continued on following page)

7

The Kentucky displays are really one frame of the

Supreme Court frieze, brought into very sharp focus. They

depict how one of the history’s great Lawgivers — Moses —

shaped our country, its laws and political institutions. And

just in case, viewers of the courthouse displays read that it

is about “Foundations of American Law and Government.”

This Court’s testimony in favor of this theme is not

limited to its own interior artwork. This Court more than

fifty years ago stamped Madison’s Memorial and Remon-

strance as the Magna Carta of religious liberty in America.

Appended in its entirety to Everson v. Board of Education,’

and excerpted many times since by members of this Court,

Madison’s ode to freedom declares: “It can be truly said,

therefore, that today, as in the beginning, our national life

reflects a religious people who, in the words of Madison,

are ‘earnestly praying, as ... in duty bound, that the

Supreme Lawgiver of the Universe ... guide them into

every measure which may be worthy of his (blessing

re

This is the message of the Kentucky documents: the

American people, a religious nation, acknowledge that

their actions as a people are guided by the Supreme

Lawgiver, and they — that is, we - give thanks.

priority, so as to avoid all the more certainly the possible appearance of

taking sides in strictly religious matters.

* Id. at 451.

” 330 U.S. 1, 63-72 (1947) (appx. to Rutledge, J., dissenting).

* Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 213

(1963).

8

II. This Court’s Precedents Sanction Govern-

mental Displays Which Recognize the De-

pendence of Our Legal Institutions Upon

Biblical Ethical Monotheism.

Many times since Everson was decided in 1947 has

this Court affirmed Madison’s central point. Just five

years later, in Zorach v. Clauson, this Court gave unquali-

fied approval to the proposition that “[w]Je are a religious

people whose institutions presupposes a Supreme Being.”

This Court in Schempp later affirmed and elaborated upon

this recognition, saying that the “fact that the Founding

Fathers believed devotedly that there was a God and the

unalienable rights of man were rooted in Him is clearly

evidenced in their writings, from the Mayflower Compact to

the Constitution itself.””°

The Sixth Circuit mentioned this passage from

Schempp, but then wholly ignored its meaning. The lower

court was convinced that, because documents such as the

Bill of Rights and the Declaration of Independence do not

include explicit mention of the Decalogue, no connection is

“facially apparent.” The court then required that the

(assertedly) missing “connection” be supplied by full

prefatory explanation. McCreary County, 354 F.3d at 451.

Schempp belies the Sixth Circuit’s conviction: neither the

Mayflower Compact nor the Constitution expressly says

that human rights are inalienable, or that they depend on

God. The Schempp Court nonetheless said that “their” —

that is, the Founders’ — writings “evidence” those convic-

tions. The question which Schempp poses about this case

* 343 U.S. 306, 313 (1952).

© 374 U.S. at 213 (emphasis added).

9

is whether the Declaration of Independence “evidence|[s]”

beliefs about the divine ground of inalienable rights, not

what the Declaration expressly recites.

Schempp referred to two of the documents on display

in Kentucky — the Mayflower Compact and that part of the

Constitution known as the Bill of Rights. But this was no

exhaustive list. This Court listed those two documents

instead as members of a huge set of writings: those “from

the Mayflower Compact” — written in 1620 — “to the

Constitution itself” — written from 1789 to 1791. In be-

tween those temporal poles lies the Declaration of Inde-

pendence. In it our founders declared: “We hold these

truths to be self-evident, that all men are created equal,

that they are endowed by their Creator with certain

unalienable rights, that among these are life, liberty, and

the pursuit of happiness.”

The Sixth Circuit found no evidence of biblical ethical

monotheism in this great manifesto of our freedom, not-

withstanding the several references to God, God’s Crea-

tion, God’s law, and our inalienable rights. The court below

conceded only a “facial similarity” between the Decalogue

and Declaration: “they both recognize the existence of a

deity.” Id. But this concession is facially mistaken: the

“deity” of the Declaration is no anonymous or generic

Supreme Being way out there, bereft of Providential care

for humans (as is the god of deism). The “deity” of the

Declaration is precisely that biblical God of which the

Schempp Court wrote. It is the “creator” God who “en-

dowed” (that is, who supplied gratuitously) creatures

“equal” in dignity with “unalienable rights,” including

“life, Liberty, and the pursuit of Happiness.”

10

The Sixth Circuit said that the Decalogue “say(s]

nothing about men being created equal.” Jd. The Ten

Commandments do not, it is true, contain the literal

expression, “all men are created equal.” But here again the

lower court failed to take seriously this Court’s admonition

in Shempp: look for the convictions about God and human

rights which the Founders’ writings — the Declaration of

Independence in this case — evidence. In fact, no ground of

human equality has been more central to its achievement

in this country that the belief we find in the Bible that we

are all brothers and sisters of the same God. A glance at

nineteenth century abolitionist arguments, or at the

writings of Martin Luther King, Jr., makes that clear to

any reasonable observer.

The Ten Commandments supply additional evidence

of human equality, and supply tne ground for inalienable

human rights, too. The moral duties of the Second Table of

the Decalogue are objective; that is, they are categorical

and universal. It is simply wrong for anyone to murder,

steal, bear false witness. These duties logically entail a

class of beneficiaries who are thereby vouchsafed uncondi-

tional (“inalienable”) human rights. Everyone has a right

not to be murdered, not to be lied to, not to be a victim of

theft, no matter who would do the killing or stealing or

lying, and no matter what reason they offer for doing it.

The Sixth Circuit missed the whole point of Jefferson’s

appeal to the “Laws of Nature and of Nature’s God.” The

point was precisely that there is a higher moral law — and

a Supreme Lawgiver — to which even the monarch of the

world’s most powerful country must bow. In case the

earthly king refuses, God’s creatures could justifiably

resist oppression by appeal to that same transcendent

morality.

11

In truth and as Lincoln suggested, the Declaration of

Independence is the “frame” into which the Framers

placed the United States Constitution. John Quincy

Adams — cited by the Sixth Circuit as Jefferson’s collabora-

tor on the Declaration” — said that the Constitution “was

the complement to the Declaration of Independence;

founded upon the same principles, carrying them out into

practical execution, and forming with it, one entire system

of national government.”” Adams also stated that “[t]he

Declaration of Independence and the Constitution of the

United States[] are parts of one consistent whole, founded

upon one and the same theory of government.”

The Kentucky displays include our national Bill of

Rights presumably because it is our country’s highest

political expression of the concepts found in the Declara-

tion of Independence: government bound to respect the

equal inalienable rights of human persons. The Mayflower

Compact also manifests ethical monotheism which, for the

Pilgrims, meant primarily the Ten Commandments. The

Compact was written “In the name of God” and “in the

presence of God.” The colonists covenanted together to

establish “a civil body politic for our better ordering and

preservation.” The Magna Carta expresses the idea that

the rights of man are inalienable and are God-given.

Blackstone describes the declaration of rights and liberties

" Id. at 452 n.5.

" Daniel L. Driesbach, Jn Search of a Christian Commonwealth:

An Examination of the Selected Nineteenth-Century Commentaries on

References to God and the Christian Religion in the United States

Constitution, 48 BAYLOR L. REV. 927, 970 (1996) (quoting John Quincy

Adams, The Jubilee of the Constitution, reprinted in 6 J. CHRISTIAN

JURISPRUDENCE 2, 5 (1986)).

“

12

in the Magna Carta as conforming to the natural liberties

of all individuals which were endowed by God at creation

and are vested by the immutable law of nature. It is easy

to see here, too, that the Ten Commandments help us to

make sense of what the Englishmen of the thirteenth

century were saying.

Our National Motto - “In God We Trust” — succinctly

expresses the ethical monotheism woven throughout the

other documents. As this Court stated in Lynch v. Don-

nelly, the National Motto is part of the “unbroken history

of official acknowledgment by all three branches of gov-

ernment of the role of religion in American life from at

least 1789.” 465 U.S. 668, 674 (1984). The National Motto

not only presupposes but also expresses America’s devo-

tion to a unitary God who acts according to a divine

creative plan, for the benefit of all humankind.

The Kentucky displays include the Star Spangled

Banner. The National Motto is derived from the line in the

anthem that states, “And this be our motto, ‘in God is our

trust.’”

Lady Justice symbolizes our fair and unprejudiced

system of justice and the ideals that it embodies. These

ideals include the notion that men are equal in dignity and

thus deserving of equal justice. In our heritage, these

notions of human dignity and equality owe very much to

our belief in a transcendent Creator God who has made

known His will for us, through revelation and by endowing

us with reason sufficient to discern important moral

truths: persons with reason.

Our precious rights and liberties — political, civil,

religious — are rooted in God’s law. So states the Preamble to

the Kentucky Constitution in terms redolent of Madison’s

13

great Memorial and Remonstrance: “We the People of

Kentucky [are] grateful to Almighty God for the civil,

political and religious liberties we enjoy.” Ky. CONST. pmbl.

- Almost every other state constitution recognizes in its

Preamble a Supreme Being; only three could be said to

lack any approving invocation or reference to God.

Ill. Precedents From This Court and Lower

Federal Courts Establish That the Bible and

Biblical Morality Have a Unique Place in Our

Culture and in Our Legal Tradition.

The unifying principle of the Kentucky displays is the

Memorial and Remonstrance, combined with this Court’s

declaration in Schempp. The nine documents manifest, in

varying but mutually reinforcing ways, the influence of a

“Lawgiver” God upon our thinking and practices concern-

ing human rights and limited government. The historical

fact is indisputable: biblical ethical monotheism is that

influence. No one suggests that Confucius and Muham-

mad played any meaningful role in our founding period.

They did not. But the God who delivered the two tablets to

Moses certainly did. And nothing whatsoever in this

Court’s precedents suggests that the Establishment

Clause requires government to pretend otherwise.“

This Court said in Stone v. Graham — the case most

relied upon by the court below and by the Respondents in

this Court — that the Bible “may constitutionally be used

in an appropriate study of history, civilization, ethics and

* We discuss fully what the Establishment Clause does require

infra Part V.

14

comparative religion, or the like.” “Or the like” indicates a

potentially great range of secular subjects to which Bibli-

cal literacy — knowledge of the history, the various literary

forms, and stories in the Bible — is integrally related.

One federal judge took the measure of the influence

the Bible has had in our culture. The Bible is “replete”

with writings relevant to such secular subjects as “history,

both ancient and modern, literature, poetry, music, art,

government, social customs and practices, values, [and]

behavioral sciences.” Another federal court noted how our

language and popular culture are replete with Biblical

allusions, including the symbol of the American Medical

Association (staff with serpent, from the Book of Num-

bers); the phrase “handwriting on the wall” (from the Book

of Daniel); and the phrase “apple of my eye” (one of God’s

Old Testament descriptions of his people, Israel).”

Our laws, our form of government, and our political

history are not understandable without reference to the

biblical ethical monotheism. “Anglo-American wale as we

know it today,” wrote one federal district court,

heavily indebted to principles and concepts found i in 1 the

Bible.” That “unique contribution” has been so great that

one federal judge rested his approval of a public school

Bible curriculum on this observation: “To ignore the role of

the Bible in the vast area of secular subjects ... is to

ignore a keystone in the building of an arch, at least

* 449 U.S. 39, 42 (1981) (emphasis added).

* Wiley v. Franklin, 468 F. Supp. 133, 149 (E.D. Tenn. 1979).

* Gibson v. Lee County Sch. Bd., 1 F. Supp. 2d 1426, 1431 (M.D.

Fla. 1998).

* Id.

15

insofar as Western history, values and culture are con-

cerned.” Another judge defended “the overriding impor-

tance of providing our children with a basic education in

the Bible.”” As three members of this Court recently

stated: “The text of the Ten Commandments no doubt has

played a role in the secular development of our society and

can no doubt be presented by the government as playing

such a role in our civic order.” City of Elkhart v. Books, 121

S. Ct. 2209, 2211 (2001) (Rehnquist, C.J., dissenting from

denial of certiorari) (quoting Books v. City of Elkhart, 235

F.3d 292, 302 (7th Cir. 2000)).

The judicial citations could be multiplied in support of

this proposition: cultural and political literacy in America

still depend upon the Bible in a way, and to an extent, far

greater than such literacy depends upon the Koran, the

Bhagavad Gita, or any other religion’s sacred texts. It is as

simple as that.

IV. The Sixth Circuit’s Mistakes Entirely Under-

mine Its Conclusion

The Kentucky displays are a tightly integrated set,

each witnessing powerfully to an enduring commitment of

the American people, expressed almost as a commonplace

at the Founding and for centuries thereafter. This Court

has long sanctioned, even championed, the most sublime

expression of this commitment, Madison’s Memorial and

Remonstrance.

* Wiley, 468 F. Supp. at 150.

* Crockett v. Sorenson, 468 F. Supp. 1422, 1429 (W.D. Va. 1983).

16

The Sixth Circuit nonetheless somehow missed the

whole point of the displays. The judges below could not

see, for example, what the religious duties of believers in

the First Table of Commandments had to do with the other

documents. Nor did those documents “discuss” the moral

norms of the Second Table. McCreary County, 354 F.3d at

450. But how can the reasonable observer now fail to see

that the Decalogue is the implicit reference point of

Madison’s powerful Memorial and Remonstrance? For on

Mount Sinai Moses received essentially this divine com-

munication: “I am the One God and here is My moral law.”

Here is the Supreme Lawgiver guiding all who are willing

to listen; here is the measure of action which calls forth

God’s blessing. Here we see, as did Madison in his Memo-

rial and Remonstrance, biblical ethical monotheism

anchoring our cherished liberties.

How did the Sixth Circuit stray so far off the track?

The court made four basic mistakes applying what it

believed to be the Lemon test. Each mistake is big enough

to undermine the court’s legal conclusions.

First, the Sixth Circuit offered its legal conclusions —

“endorsement” and “religious purpose” — as implications of

its “no connection” thesis. We have seen that the thesis is

false: the documents are a coherent set with a common

theme. They are connected. But even if the court’s “no-

connection” thesis were true, its legal conclusions would

not follow. Given the overwhelmingly political provenance

of the texts displayed, anyone experiencing “disconnect”

would conclude one of two things: either he did not fully

understand the display, or one of the plaques did not

belong with the others. The “reasonable observer” would

not agree with the Sixth Circuit that a single puzzling or

17

anomalous text — the Ten Commandments — makes the

whole display “religious,” any more than a perplexed

Supreme Court visitor who, knowing Confucius only in

religion, would conclude that the frieze lacks a secular

purpose or endorses religion.

Second, the Sixth Circuit saddled Kentucky authori-

ties with an unprecedented burden of proof: they had to

“demonstrate” a connection between the Decalogue and

the other documents. We have already seen some flaws in

the court’s idea of a “demonstration.” These flaws include

the requirement that there be a “facial” connection appar-

ent from the words on paper. We have seen that this Court

laid down an entirely different approach in Schempp:

What do the texts “evidence”? The Sixth Circuit ignored

Schempp, and suggested that the only corrective was to

integrate the Ten Commandments into a curricular offer-

ing, a full-blown course. Id. at 448. But the suggestion is

tantamount to declaring that no passive display is consti-

tutionally permissible. That is surely not the law pro-

pounded by this Court.

This Court has resisted all such per se rules. This

Court has never said that a passive display of the Ten

Commandments even standing alone is per se unconstitu-

tional. That was the factual setting of Stone. Three mem-

bers of this Court recently noted the “unique [factual]

setting” in Stone, where posting the Decalogue alone in

classrooms “effectively induced schoolchildren to meditate

upon the Commandments during the school day.” City of

Elkhart, 121 S. Ct. at 2211 (Rehnquist, C.J., dissenting from

denial of certiorari). Here the Ten Commandments are not

alone. In the two settings at issue they are not in a school-

house at all. This case is scarcely the right setting for a

lower federal court to depart from this Court’s holdings,

18

and to create the first per se rule ever in this area of the

law.

— Third, the court below fixated on one claim in the

courthouse prefatory description, the claim that the

Decalogue provides “the moral background of the Declara-

tion of Independence.” McCreary County, 354 F.3d at 443.

The Sixth Circuit treated it as a litmus test of the Defen-

dants’ case. To say that the court here mistook the tree for

the forest would be to word the mistake charitably. And

the court was wrong in concluding that the illustration

fails. It works.

The Sixth Circuit fixated on a question about Jeffer-

son’s mind: was he inspired to write the Declaration’s

phrases about unalienable rights by the Ten Command-

ments, or at least by the Bible more generally? Id. at 452.

But the mental sources of Jefferson’s draft — whatever

they were — are irrelevant to the only question that mat-

ters: What evidence does the writing itself supply about its

sources and inspiration?

The Declaration of Independence was not and was

never understood to be an extension of Jefferson’s mind. It

was signed and thus enacted by fifty-five individuals,

meant by these many authors to be effective according to

the common convictions of humankind. The Declaration

was intended to stir all Americans to resist tyranny. It was

published out of “respect to the opinions of mankind.”

Jefferson’s private theological views — whatever they were

— have nothing to do with these purposes. His idiosyn-

cratic theology would have impeded wide understanding

and acceptance of the Declaration. No doubt, either, that

Jefferson’s theology was unrepresentative. Even the

historian relied upon by the Sixth Circuit — Pauline Maier

19

— reported on Jefferson's “heterodox religious views.” Jd. at

452 n.6.

Fourth, the Sixth Circuit misapprehended the nature

of the connection it sought. The court did not comprehend

that, because the nine texts are members of the one set,

their “connection” is more vertical than horizontal. That is,

they are related to each other characteristically by virtue

of their common possession of a unifying principle, and not

necessarily by a complex pattern of cross-fertilization: the

Mayflower Compact as one part Decalogue and one part

Magna Carta, and so on. The nine are rather like siblings,

constituted as such by common parentage, but each one

different in important ways from its brothers and sisters.

The Sixth Circuit may have been thrown off track by

the fact (ably shown by Appellants’ Brief below) that the

specific norms in the Decalogue influenced legislation in

the colonies and, later, the states. As Chief Justice Warren

asserted in Oral Argument of Murray v. Curlett, the

companion to Schempp: “(Clouldn’t we say thfat] ...

practically all of our basic crimes . . . stem from a violation

of the Ten Commandments?” There is certainly much

historical evidence that the Decalogue played a role in the

origins of the other documents that they obviously did not

play in its origins. But this asymmetrical horizontal

influence is incidental to the real unity (“connection”) of

the Kentucky sets. All of the documents evidence how a

particular worldview — biblical ethical monotheism -

shaped our thinking about rights, governm: 1t, and law.

* Transcript of Oral Argument at 24, Murray v. Curlett, 374 U.S.

203 (1963) (No. 119), in ORAL ARGUMENT OF THE SUPREME COURT OF

THE UNITED STATES: THE WARREN Court, 1953 TERM-1968 TERM (1984).

20

V. This Court’s Precedents, Including Stone v.

Graham, Establish the Test in This Case: The

Displays Must Not Purposely Advance a Par-

ticular Religion.

The Sixth Circuit correctly stated that it had “neither

the ability nor the authority to determine the ‘correct’ view

of American history.” McCreary County, 354 F.3d at 453.

The judges were therefore obliged to accept for purposes of

this litigation that biblical ethical monotheism has had a

profound influence on our legal tradition, our laws, and

the formation of our country. It is so. We have seen how

this Court on many occasions has recognized the role of

religion and of the Bible (including biblical morality) in

our history. The Sixth Circuit quoted some of them. Jd. at

450-52.

Is there any reason to nonetheless agree with the

Sixth Circuit’s judgment of unconstitutionality? What is

the law governing this case? How does this Court’s holding

in Stone v. Graham apply on these facts?

-

This Court has abandoned many tenets of its holding

in Stone. For one thing, the “secular purpose” test has

shifted. The current statement of this requirement is from

Bowen v. Kendrick: “Under the Lemon standard, which

guides ‘|t]he general nature of our inquiry in this area,’ a

court may invalidate a statute only if it is motivated

wholly by an impermissible purpose.” 487 U.S. 589, 602

(1988) (citations omitted). Lynch v. Donnelly held that a

secular purpose is lacking “only when it has concluded

there was no question that the statute or activity was

motivated wholly by religious considerations.” 465 U.S.

668, 680 (1984). In Wallace v. Jaffree, this Court said that

“the First Amendment requires that a statute must be

invalidated if it is entirely motivated by a purpose to

21

advance religion.” 472 U.S. 38, 56 (1985). The Wallace court

cited, among other cases, Stone v. Graham. Id. at 56 n.41.

The Sixth Circuit ignored these developments. It

asked whether religion was the “predominant” purpose of

the displays. McCreary County, 354 F.3d at 446. This

errant statement of law may, however, be dictum. The

court also adopted the district court’s conclusion that

religion was the “actual” or “primary” purpose of the

displays. But then the Sixth Circuit seemed to supersede

these conclusions. Speaking in its own voice the court

concluded that Kentucky's “message” was “patently

religious,” as was its purpose. Jd. at 451, 453. Finally, the

court said that “Defendants intend to convey the bald

assertion that the Ten Commandments formed the founda-

tion of American legal tradition.” Jd. at 454.

Which precisely of these moving targets is supposed to

be the real one is impossible to say. In any event, there is

no basis whatsoever for saying that the Kentucky displays

are motivated “wholly” by religious considerations. So far

considered the “secular purpose” test is satisfied.

It is true that this court in Stone determined that the

Kentucky legislature’s purpose in that case was wholly

religious. The conclusion seems to have been bared upon

the view that the Decalogue is wholly religious. In an

important sense, that is obviously true: what happened on

Mount Sinai is believed to be a genuine divine revelation,

a religious event if ever there was one. But that sense does

not rule out the possibility of considering the Ten Com-

mandments from other perspectives, or from studying

them with non-religious purposes in mind. The Decalogue

can and often is studied as an example of natural law; as a

22

turning point in the history of an ancient people with

direct modern descendants occupying the same land; as a

specialized mode of expression for “religious experience”;

and, most pertinently, as a pillar of the ethical monothe-

ism which has shaped us.

Stone nonetheless seems to say that the Decalogue is

something which, given its completely (or utterly or

thoroughly) “religious” character, could only be displayed

out of a desire to endorse religion. In other words, there

could be no secular purpose for displaying the Ten Com-

mandments.

But this is surely untrue, as this Court has since

recognized and plainly said. Display of the Decalogue is

not per se religious, as this Court has confirmed in cases

subsequent to Stone. Three members of this Court said in

2001: “[W]e have never determined, in Stone or elsewhere,

that the Commandments lack a secular application.” City

of Elkhart, 121 S. Ct. at 2211 (Rehnquist, C.J., dissenting

from denial of certiorari). The Sixth Circuit correctly

observed that Stone established no per se rule “against

displaying the Ten Commandments for the purpose of

demonstrating a connection with the structure of Ameri-

can law or government.” McCreary County, 354 F.3d at

448. The Stone court itself described the Decalogue both as

per se sectarian, and as at least arguably (or potentially)

secular, recognizing the “arguably secular” character of

matters “such as honoring one’s parents, killing or murder,

adultery, stealing, false witness and covetousness.” 449

U.S. at 41-42. Since we are all called upon to read, and

obey, if not to meditate upon and venerate, the law against

murder, it is hard to see how educating schoolchildren to

do so could never be a permissible state purpose.

23

Neither Stone nor any other Supreme Court ruling

has squarely applied the “endorsement” test to contextual

display of the Ten Commandments such as we have here.

On a first look, the question — “does it endorse religion to

recognize the role of biblical ethical monotheism has

played in our law and our life” - seems unanswerable. Or,

the answer is: in a sense, yes, and, in a sense, no. The best

answer is, however, no, in the decisive sense: the point and

effect of the Kentucky displays is about secular matters,

such as human rights, basic liberties, and constitutional

government, not religion.

It is important to consider, too, that to leave the

biblical ethical monotheism out of any attempt to convey

the foundations of our Republic would be false. To require

such a false presentation could reasonably be taken to

indicate hostility to religion, even as an intention to

disparage it. To require a false presentation would be to

substitute a nonreligious ideology for the objective presen-

tation which the Sixth Circuit correctly said was required

by the Constitution. To require a false presentation would

then be unconstitutional. Establishment Clause neutrality

is a two-way street. It prohibits government endorsement

of a particuler religion. But it prohibits as well endorse-

ment of nonreligicn or secularism. ya

i « ” j mited

The problem is that “endorsement” in some

sense seems to be part and parcel of any display, Use, or

mention of a sacred text or figure, be it the Bible, the

Pieta, or the image of Muhammad. There is no constitutional

basis for excluding all such efforts; no case has ever sug-

gested nearly so draconian a measure. How, then, should one

think of the “endorsement” test in this context? We think

that Justice Lewis Powell correctly articulated the rule.

He said in his opinion concurring in the invalidation of a

24

Creation Science curriculum (Edwards v. Aguillard): the

Establishment Clause “is properly understood to prohibit

the use of the Bible and other religious documents in

public school education only when the purpose of the use is

to advance a particular religious belief.” 482 U.S. 578, 608

(1987) (Powell, J., concurring) (emphasis added).

Stone is therefore to be understood to prohibit gov-

ernmental display of the Ten Commandments (and,

presumably, other religious texts or symbols) wherever the

purpose is to promote them as demonstrating the truth of

a particular religion (Christianity or Judaism). And there

is no evidence or suggestion in this record that Kentucky

is proselytizing its citizens. The displays under review

here aim to promote respect for the underpinnings of our

republic, not to convert people to a particular religion.

A final note on the question of whether Kentucky has

endorsed a particular religion: the Ten Commandments

appear in these displays as they are found in the Book of

Exodus in the King James version of the Bible. The Deca-

logue appears, of course, also in Deuteronomy, and there

are many translations and editions of the Bible besides the

King James. Religious bodies sometimes characteristically

prefer one translation or edition of the Bible, to the exclu-

sion of others. There are “Protestant” and “Catholic”

editions of Sacred Scripture.

One argument against the Kentucky displays might

therefore be that any such undertaking has to favor one

religious group over all others, because the display has to

settle upon some one biblical translation. One translation

there would have to be, but the conclusion does not follow.

The relevant substance is conveyed by any translation.

The substance is biblical ethical monotheism, not the

25

literary details of its expression. Once the reasonable

observer sees the point of the display to be that biblical

ethical monotheism shaped our political world, the ob-

server will readily see, too, that nothing about the particu-

lar translation is part of the government’s purpose. And so

there is no endorsement.

There is no evidence in the record that Kentucky

authorities selected the King James edition in order to

promote a particular religious group or theology. In fact,

the displays do not inform the viewer that he or she is

reading from the King James Bible, probably in order to

avoid supplying any evidence whatsoever of an endorse-

ment. The King James Bible has long been and remains

the most commonly used English language translation.

From a literary standpoint, it is beyond question an

important milestone in English prose, a literary produc-

tion whose rhythms and phrases have been echoed in

countless subsequent works of literature. See ADAM

NICOLSON, GOD’s SECRETARIES: THE MAKING OF THE KING

JAMES BIBLE xi (2003).

«

CONCLUSION

The judgment of the Sixth Circuit Court of Appeals

should be reversed.

Respectfully submitted,

GERARD V. BRADLEY ROBERT P. GEORGE

Council to the Family Counsel of Record

Research Council and

Focus on the Family