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

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No. 03-1693

“Supreme Cour, US. |

FILED

Cc g-

ae DEC 8 - 2004

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 al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

Brief of Amicus Curiae Foundation for Moral Law, Inc.

Suggesting Reversal

Roy S. MOORE

BENJAMIN D. DUPRE

(Counsel of record)

GREGORY M. JONES

FOUNDATION FOR MORAL LAW, INC.

Amicus Curiae

P.O. Box 231264

Montgomery, AL 36123

(334) 262-1245

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

QUESTIONS PRESENTED FOR REVIEW

1. Whether the constitutionality of a display of the Ten

Commandments in a county courthouse should be determined

solely by the text of the Constitution.

2. Whether, according to the text of the Establishment

Clause, a display of the Ten Commandments in a county

courthouse is unconstitutional.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED........sccsccssssessssssecssssssvecssssvesssssseeseen

TABLE OF CONTENTS. ...cccccccssscessssssesssssuessssssscessssuessssssecesen i

TABLE OF AUTHORITIES .......cc.cccscsscssssuessssssvecssssueeesssseeesen iv

STATEMENT OF INTEREST OF AMICUS CURIAE 0.0.00...

SUMMARY OF ARGUMENT .....c.cccsscccssssscessssssesecsssecsssssseeeee 2

SS 3

THE CONSTITUTIONALITY OF THE

KENTUCKY COUNTIES’ TEN COMMAND-

MENTS DISPLAYS SHOULD BE DECIDED

ACCORDING TO THE TEXT OF THE

CONSTITUTION, NOT JUDICIALLY FAB-

EE 3

A. Judges are sworn to uphold the written

acai cara tnctscnsrincensnennecens 3

B. The words of the First Amendment have been

rejected in favor of ad hoc _ judicial

aac iccatdccascncecseneeddonteccoones 4

C. Textual infidelity has papered over America’s

history and constitutional government that

embraces acknowledgments of God and public

GRPTORSIONS OF TELIBION. .........000:.ccccceccccesesssescsseeeseeees 6

D. This Court should return to the fixed rule of the

EE Y

ili

ll. THE KENTUCKY COUNTIES’ COURTHOUSE

TEN COMMANDMENTS DISPLAYS ARE NOT

UNCONSTITUTIONAL BECAUSE THEY ARE

NOT “LAW{[S] RESPECTING AN ESTABLISH-

ETE E GO RETIN. scsciccssunciicuisinsinilicnientaiciitiialaiianniassiii 11

A. Neither the displays, nor the Counties’ actions

in relation to the displays, are “law{s].”................. 11

B. The Counties’ courthouse displays do not

respect “an establishment of religion.”’.................. 13

1. The definition of “religion” .«..................ccccsseess 14

2. The definition of “establishment”’.................... 19

ST ictniccbacctinisieiatinitibiissabiiniasindibiaiiidaintaisaiiibalaiiibilampaaininied 22

TABLE OF CITED AUTHORITIES

Page

CASES

ACLU of Kentucky v. McCreary County, Ky.,

96 F. Supp. 2d 679, 682 (E.D. Ky. 2000) 0... eee 13

ACLU of Kentucky v. McCreary County, Ky.,

354 F. 3d 438 (6th Cir. 2003) oo... eee eeeeeeeeeeeeeeeeeeees 5, 20

ACLU of New Jersey v. Schundler,

BOS FOG B4SS COG Cae. BIT) ncccccsnccccescccessesvesssesesescoesconses 5

Anderson v. Salt Lake Counties Corp.,

475 F.2d 29 (10th Cir. 2002) ........ssecsecsecseseeseesessesseeseesnesnee 5

Bauchman for Bauchman v. West High Sch.,

132 F.3d 542 (10th Cir. 1997) .............cccccscsscsssscessssesserseeees 5

Books v. Counties of Elkhart, Ind.,

Be eine CI EIS BID, setescttctnctesinssnitncseninenccescomnaseséana 21

Cantwell v. Connecticut, 310 U.S. 296 (1940) ....... cee eeeeeee 17

County of Allegheny v. ACLU, 492 U.S. 573 (1989)..... 6, 11-12

Davis v. Beason, 133 U.S. 333 (1890)... eeeeeeeeee 14, 15

Dred Scott v. Sandford, 60 U.S. 393 (1856) ..........:cccccccseeeeeeees 10

Edwards v. Aguillard, 482 U.S. 578 (1987) .........:ccceesseee 20-21

Everson v. Bd. of Educ., 330 U.S. 1 (1947)... we... 14, 16, 17

Freethought Soc’y v. Chester County,

Fe ee ee Ce le BD cctticccseectcstsotaneninnssscessasen eee 5

Girouard v. United States, 328 U.S. 61 (1946) ......... cece 15

Helms v. Picard, 151 F.3d 347 (Sth Cir. 1998)... cece eee 5

Holmes v. Jennison, 39 U.S. (14 Peters) 540 (1840)................. 4

King v. Richmond County, 331 F.3d 1271

IEE eR eT eT OTE 6, 21

~ Koenick v. Felton, 190 F.3d 259 (4th Cir. 1999) .......cccceeeeeeeees 5

Lemon v. Kurtzman, 403 U.S. 603 (1971) ....c.ccccccecceeseeeeeeees 4,12

Lynch v. Donnelly, 465 U.S. 668 (1984) ........cccccccceseesseeeeeseeees 4

Marbury v. Madison, 5 U.S. (1 Cranch) 137

SeUe ED ochiicieiiisiigininiidbidibniatadibbadasiabaieliddeubananlendiiansned 3,4, 10, 11

Payne v. Tenn., 501 U.S. 808 (1991) 0.0... ccecceseeeesseseeeeeeeeees 6

Planned Parenthood of Southeastern Penn. v. Casey,

ee Ss ee iinicticesescceticsaibiidbdabihapiininsiticitysenannieaiacivtel 6

Reynolds v. United States, 98 U.S. 145 (1878)..........cccccceeeeees 14

Richardson v. Goddard, 64 U.S. (How.) 28 (1859)......c.:0c00++. 13

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) ......... 1!

School Dist. of Abington Tp., Pa. v. Schempp,

ee eh cceitinnicsacesiieseiaiainniatiiitdiieinnintiniaiabtin 8,9

South Carolina v. United States, 199 U.S. 437 (1905)............. 3

Torcaso v. Watkins, 367 U.S. 488 (1961) ..........::ccccceeeeseeeeeeeees 14

United States v. Macintosh, 283 U.S. 605 (1931)........ 14, 15-16

Van Orden v. Perry, 351 F.3d 173 (Sth Cir. 2003).............. 5,21

Walz v. Tax Comm'n of City of New York,

a a ccecesesteiiieticerstidesianiecigciideinieentariniiniaaiianianiiiintsi 20

CONSTITUTIONAL PROVISIONS

Sa III: TIT Tis neitarienasnsiahnaeehenieniantiinneniiniianbiaineninebinimmianintabante 3

a 2,11, 13

Rs RIN TIL: Tl 9 Uienia isc sansarscitcnnsmnensnsiiaidnnniiinaosneamnalindionata 14,17

STATUTES AND RULES

A tie UF ihcacnnieciinssicsilnsnidatastansinsisntnatpeindtecasinnibbeninnememoinnennneneee 18

Se ee. OF ee iicaisstntencncssstinnansintitentanininitininedaiantitnsentnmnnmenees 18

Ky. Rev. Stat. Ann. § 67.083(3) (Banks-Baldwin 2000)... 12-13

OTHER AUTHORITIES

John Adams, The Works of John Adams, Second

President of the United States, vol. IX,

(Boston: Little, Brown, and Co. 1854) .0.............cccccceeeeeeeees 8

I William Blackstone, Commentaries on the Laws of

England (Univ. of Chi. Facs. ed. 1765) ..............::cccceeeeeeees 12

Constitution of Virginia, Bill of Rights (June 12, 1776),

reprinted in Sources of Our Liberties (Perry rev. ed.,

Amer. Bar Found. ed. 1978) ..............ccccccceeeeeeeeeeeeeeeeees 14,17

Declaration of Independence (1776)..............:.ccseccceesseeeeeeeeeeeees 7

Thomas M. Cooley, General Principles of Constitutional

Law (Weisman pub. 1998) (1891)... eeeeeeeeeeteeee 19

Fact Sheets: Currency & Coins—History of “In God We

Trust,” United States Department of the Treasury, at

http://www.ustreas.gov/education/fact-sheets/currency/

in-god-we-trust html ...............ccesccsssseeeeseseecesseeeeeeeseereeeees 18

Fundamental Orders of Connecticut of 1639, in Colonial

Origins of the American Revolution: A Documentary

History (Donald S. Lutz ed. 1998)... eeceeceeeeeeeeeeeeees 7

William J. Federer, America’s God and Country (1994) .......... 7

William J. Federer, Treasury of Presidential Quotations

SiaTITTTEIcosiniechdneindieinniedieetabaapaes daienidvipiensanipeanedbasdadsibeekiniaianinseneniinnnepees )

H.R. Rep. No. 83-1693 (1954).........cccccceeeesseeeeteeeetteeeeeeeeeeees 18

Vii

James Hutson, Religion and the Founding of the American

ee ee csuciicccntsivnnsniamgntonaianneniniipeiniiavaitialitesaiieianl 8

Thomas Jefferson, “Virginia Act for Establishing Religious

Freedom” (October 31, 1785), reprinted in 5 The

Founders’ Constitution (P. Kurland & R. Lerner eds.

Suva sceciavsissiteneitesianscnettaepsiiisiibditaeieacinbeasiidiidasbiitinbiibmaeaiaiisie 16

James Madison, The Federalist No. 37 (George W. Carey

& James McClellan eds. 2001) .0............cccccseeeseeeseeeeeeeeeeee 7-8

J. Madison, Letter to Thomas Ritchie, September 15, 1821,

III Letters and Other Writings of James Madison

(Philip R. Fendall ed. 1865)...............scccccosssrcssesseccssscccsseeeees 4

J. Madison, Memorial and Remonstrance (1785).............. 14, 16

J. Madison, Congressional Debate on the Bill

of Rights, in 1 Annals of Cong. 757 (1789)

(Gales & Seaton’s ed. 1834) 0.0... eccceccceseeseceeseerseeceseeeeees 19

Mayflower Compact, reprinted in Our Nation's Archive:

The History of the United States in Documents (Bruun

Fs Cr I BT ccasccitensaceesicitciegnetnnntnrsenttiinnaninntanimninniae 6-7

Northwest Ordinance of 1789, Article III, reprinted in

William J. Federer, America’s God and Country (1994) ....8

Michael W. McConnell, Accommodation of Religion: An

Update and Response to the Critics, 60 Geo. Wash. L.

Rev. 685 (1992)............ s cadennsentbiiiiimehibiebimminaincinniebeiciis 20

The Reports of the Committees of the House of

Representatives of the United States for the First

Session of the Thirty-Third Congress, 1854, The House

Judiciary Committee, March 27, 1854 (Washington:

A.P.O. Nicholson, 1854).............::cccccccccceeeeeeeeeseseeseeeees 19-20

Vill

The Reports of the Committees of the Senate of the United

States for the Second Session of the Thirty-Second

Congress, 1852-53, The Senate Judiciary Committee,

Tire initisenetendinsdinemmanininitensditaieitinnaneindinnaienenens 8-9

II Joseph Story, Commentaries on the Constitution § 1871

RTI hcessnsianenenntisnenenmpinentinenbimensnentenssinaidinesnaatattenienen 19

George Washington, The Writings of George Washington,

vol. XXX, (Washington, D.C.: U.S. Government

PIES UE cnrsicinientncencciadeccsnneesinteniinancienesenmennenienl 8

G. Washington, Thanksgiving Proclamation of October 3,

1789, in 4 The Papers of George Washington,

Presidential Series (W. W. Abbot et al., eds., 1987)... 17-18

Noah Webster, American Dictionary of the English

Language (Foundation for American Christian Educ.

TIITTITTITIIT snctensnsseccnieniuncceebsbiinnatintindaiamnimninvetnwiioitins 12

SS ER eee -

STATEMENT OF INTEREST OF AMICUS CURIAE

Amicus curiae Foundation for Moral Law, Inc.' (“the

Foundation”), is a national public-interest organization based

in Montgomery, Alabama, dedicated to defending the

inalienable right to acknowledge God, especially when

exercised by public officials. The Foundation promotes a

return in the judiciary (and other branches of government) to

the historic and original interpretation of the United States

Constitution, and promotes education about the Constitution

and the Godly foundation of this country’s laws and justice

systems. To those ends, the Foundation has assisted in several

cases concerning the public display of the Ten

Commandments.

The Foundation has an interest in this case because it

believes that the public posting of the Ten Commandments

represents an important way in which government can

acknowledge the sovereignty of God and His influence (past

and present) on this nation. This brief primarily focuses on

whether the text of the Constitution should be determinative in

this case, and whether the displays of the Ten Commandments

at issue violate the words of the Establishment Clause.

' Amicus curiae Foundation for Moral Law, Inc. files this brief by

consent of counsel for voth Respondents (letter filed with the Clerk of the

Court granting blanket consent to any amicus briefs) and Petitioners (letter

of consent filed with this brief). Counsel for amicus authored this brief in

its entirety. No person or entity—other than the Foundation, its supporters,

or its counsel—made a monetary contribution to the preparation or

submission of this brief.

SUMMARY OF ARGUMENT

The display of the Ten Commandments on public property

does not violate the Establishment Clause of the First

Amendment because such displays do not implicate the text

thereof, particularly as it was historically defined by common

understanding at the time of the Amendment’s adoption. The

Ten Commandments displays (“the displays”) erected by

McCreary and Pulaski counties (“the Counties”) are therefore

constitutionally unobjectionable.

It is the responsibility of this Court and any court

exercising judicial authority under the United States

Constitution to do so based on the text of the document from

which that authority is derived. A court forsakes its duty when

it rules based upon case tests that bear no resemblance to or

take the focus away from the text of the constitutional

provision at issue. Amicus urges this Court to return to first

principles in this case and once again to embrace the plain and

original text of the Constitution to guide its Establishment

Clause jurisprudence.

The text of the Establishment Clause states that “Congress

shall make no /aw respecting an establishment of religion.”

U.S. Const. amend. I (emphasis added). When these words are

applied to the Ten Commandments displays at issue, it

becomes evident that the displays are not a law, they do not

dictate religion, and they do not represent a form of an

establishment. Thus, a textual analysis demonstrates that the

displays of the Ten Commandmens in the courthouses of the

Kentucky counties are not prohibited by the Establishment

Clause.

ARGUMENT

I. THE CONSTITUTIONALITY OF THE KENTUCKY

COUNTIES’ TEN COMMANDMENTS DISPLAYS

SHOULD BE DECIDED ACCORDING TO THE

TEXT OF THE CONSTITUTION, NOT JUDICIALLY

FABRICATED TESTS.

“The Constitution is a written instrument. As such, its

meaning does not alter. That which it meant when it was

adopted, it means now.” South Carolina v. United States, 199

U.S. 437, 448 (1905). In contrast to this Court’s often

conflicting and always perplexing Establishment Clause

precedents, the “written instrument” has remained unchanged

from its original, ratified, and popularly approved form. It is

time for this esteemed Court to return to the bright-line “test”

that is the very words of the First Amendment of the United

States Constitution.

A. Judges are sworn to uphold the _ written

constitutional text.

Our constitutional paradigm dictates that the Constitution

itself and all federal laws are the “supreme Law of the Land.”

U.S. Const. art. VI. All judicial officers—from inferior courts

to this Court—take their oath of office to support the

Constitution itself (and no person, office, or government body).

Id. Amicus respectfully submits that this Constitution and its

oath thereto are still relevant today and should control, above

all ot..er competing powers and influences, the decisions of this

Supreme Court.

Chief Justice John Marshall, writing for this Court,

observed in Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803), that the very purpose of a “written” constitution is to

ensure that government officials, including judges, do not

depart from the document’s fundamental principles. See

Marbury, 5 U.S. at 176-80. “[I]t is apparent that the framers of

the constitution contemplated that instrument, as a rule of

government of courts . . . . Why otherwise does it direct the

judges to take an oath to support it?” Jd. at 179-80. James

Madison, the “father” of the Constitution, concurred in this

view, stating that, “As a guide in expounding and applying the

provisions of the Constitution . . . .the legitimate meanings of

the Instrument must be derived from the text itself.” J.

Madison, Letter to Thomas Ritchie, September 15, 1821, III

Letters and Other Writings of James Madison 228 (Philip R.

Fendall ed. 1865). This Court once believed that

[ijn expounding the Constitution . . . , every word must

have its due force, and appropriate meaning; for it is

evident from the whole instrument, that no word was

unnecessarily used, or needlessly added.”

Holmes v. Jennison, 39 U.S. (14 Peters) 540, 570-71 (1840).

B. The words of the First Amendment have been

rejected in favor of ad hoc judicial gerrymandering.

Today, instead of applying, or at most explaining, the

words of the First Amendment, this Court has led the federal

judiciary to reject the very instrument judges are sworn to

uphold: “[A]n absolutist approach in applying the

Establishment Clause is simplistic and has been uniformly

rejected by the Court .. . . In each case, the inquiry calls for

line drawing; no fixed, per se rule can be framed.” Lynch v.

Donnelly, 465 U.S. 668, 678-79 (1984). Not surprisingly, the

Sixth Circuit and the district court below attempted to draw the

“line” in this case and evaluated these displays of the Ten

Commandments under the guise of the textual substitution

devised in Lemon v. Kurtzman, 403 U.S. 602 (1971), at the

expense of the actual words of the Establishment Clause.

Amicus is hardly making a novel point when it suggests

that the alternatives the Court has crafted in the place of the

text of the First Amendment have been weighed in the balance

and been found wanting. As even the Sixth Circuit admitted in

this very case, several “individual Supreme Court justices have

expressed reservations regarding the test set forth in [Lemon]

for determining whether a particular government action

violates the Establishment Clause.” ACLU of Kentucky v.

McCreary County, Kentucky, 354 F. 3d 438, 445 (6th Cir.

2003).? These “reservations” are no doubt due in part to the

myriad of results in the circuits throughout the country

concerning religious displays. As the petitioners observed in

their certiorari petition, just in cases involving the display of

the Ten Commandments there have been decisions in the

Third, Fifth, Tenth, and Eleventh Circuits that have arrived at

different conclusions thar the Sixth Circuit has in this case.

See Freethought Soc’y v. Chester County, 334 F.3d 247 (3d

Cir. 2003); Van Orden v. Perry, 351 F.3d 173 (Sth Cir. 2003);

Anderson v. Salt Lake Counties Corp., 475 F.2d 29 (10th Cir.

? The Sixth Circuit’s expression of frustration over the current state of

Establishment Clause jurisprudence is mild compared to its fellow circuits’.

For example, the Third Circuit Court of Appeals has observed that “[t}he

uncertain contours of these Establishment Clause restrictions virtually

guarantee that on a yearly basis, municipalities, religious groups, and

citizens will find themselves embroiled in legal and political disputes over

the content of municipal displays.” ACLU of New Jersey v. Schundler, 104

F.3d 1435, 1437 (3rd Cir. 1997). The Fifth Circuit has referred to this area

of the law as a “vast, perplexing desert.” Helms v. Picard, 151 F.3d 347,

350 (Sth Cir. 1998), rev'd sub nom. Mitchell v. Helms, 530 U.S. 793 (2000);

the Fourth Circuit has labeled it “the often dreaded and certainly murky

area of Establishment Clause jurisprudence.” Koenick v. Felton, 190 F.3d

259, 263 (4th Cir. 1999); and the Tenth Circuit opined that there is

“perceived to be a morass of inconsistent Establishment Clause decisions.”

Bauchman for Bauchman v. West High Sch., 132 F.3d 542, 561 (10th Cir.

1997).

2002); and King v. Richmond County, 331 F.3d 1271 (11th Cir.

2003).

This confusion and criticism should not come as a surprise.

When the policy of this Court is to eschew a “fixed per se

rule,” predictability in decision-making—a hallmark of true

law—is also jettisoned. This Court should seek to provide a

First Amendment jurisprudence that enjoys an “evenhanded,

predictable, and consistent development of legal principles,

{that would] foster[] reliance on judicial decisions.” Payne v.

Tenn., 501 U.S. 808, 827 (1991); see, eg., Planned

Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 867-

68 (1992).

The jurisprudential experiments with various extra-textual

“tests” have produced a continuum of disparate results, often

because of an attempt to achieve a “neutrality” concerning

religion. See e.g., County of Allegheny v. ACLU, 492 U.S. 573,

593-94 (1989) (“[t]he Establishment Clause, at the very least,

prohibits government from appearing to take a position on

questions of religious beliefs or from ‘making adherence to a

religion relevant in any way to a person’s standing in the

community’”). But in so doing, this Court has strayed from the

foundational principles of our constitutional system.

C. Textual infidelity has papered over America’s

history and constitutional government that embraces

acknowledgments of God and public expressions of

religion.

Our United States was never intended to be “neutral” on

the issue of God. The Pilgrims landing at Plymouth Rock in

1620 each signed the Mayflower Compact, which declared that

they had “undertaken for the Glory of God and Advancement

of the Christian Faith, and the Honour of our King and

Country, a voyage to plant the first colony in the northern Parts

of Virginia...” Our Nation’s Archive: The History of the

United States in Documents 46 (Bruun & Crosby eds. 1999).

In the Fundamental Orders of Connecticut of 1639, the first

permanent governing document of that colony and a forerunner

of several colonial constitutions, the people stated that they

desired “an orderly and decent Government established

according to God, to order and dispose of the affairs of the

people at all seasons as occasion shall require.” Colonial

Origins of the American Revolution: A Documentary History

211 (Donald S. Lutz ed. 1998).

The prominence of God in our nation’s development

continued during and after the American Revolution. God is

referenced four times in the Declaration of Independence: He

is called our “Creator” Who “endowed” us with “certain

unalienable rights”; “Nature’s God” Who instituted the “Laws

of Nature”; the “Supreme Judge of the world”; and the One on

Whom the Founding Fathers called upon for “the protection of

divine Providence,” as they pledged themselves to the cause of

independence. See Declaration of Independence (U.S. 1776).

Demonstrating that these references were not mere rhetorical

flourish, the Continental Congress, on November 1, 1777,

declared a day of national thanksgiving even in the midst of the

war for independence because they believed “it is the

indispensable Duty of all Men to adore the superintending

Providence of Almighty God; to acknowledge with Gratitude

their Obligation to him for benefits received, and to implore

such further Blessings as they stand in Need of.” First

National Proclamation of Thanksgiving, reprinted in William

J. Federer, America’s God and Country 147 (1994). James

Madison stated in Federalist No. 37 that he believed that those

who had participated in the Constitutional Convention of 1787

had “surmounted with an unanimity almost unprecedented” “so

many difficulties” that “[i]t is impossible, for the man of pious

reflection, not to perceive in it a finger of that Almighty Hand,

which has been so frequently and signally extended to our

relief in the critical stages of the revolution.” J. Madison, The

Federalist No. 37 185 (George W. Carey & James McClellan

eds. 2001).

Not only was the nation at its founding not neutral toward

God, but also, as this Court noted in School Dist. of Abington

Tp., Pa. v. Schempp, 374 U.S. 203, 213 (1963), “religion has

been closely identified with our history and government.” The

Declaration’s primary author, Thomas Jefferson, observed that, ©

“No nation has ever existed or been governed without religion.

Nor can be.” T. Jefferson to Rev. Ethan Allen, quoted in

James Hutson, Religion and the Founding of the American

Republic 96 (1998). George Washington similarly declared

that, “While just government protects all in their religious

rights, true religion affords to government its surest support.”

The Writings of George Washington 432, vol. XXX, (1932).

The Northwest Ordinance of 1787, reenacted by the First

Congress in 1789 and considered like the Declaration of

Independence to be part of this nation’s organic law, declared

that, “Religion, morality, and knowledge [are] necessary to

good government.” Northwest Ordinance of 1789, Article III,

reprinted in America’s God and Country, at 484.

Concerning the Constitution in particular, John Adams

observed that, “[W]e have no government armed with power

capable of contending with human passions unbridled by

morality and religion. . . . Our constitution was made only for a

moral and religious people. It is wholly inadequate to the

government of any other.” The Works of John Adams, Second

President of the United States 229, vol. 1X (1854).

The United States Congress affirmed these sentiments in a

Senate Judiciary Committee report concerning the

constitutionality of the Congressional chaplaincy in 1853:

[The Founders] had no fear or jealousy of religion itself,

nor did they wish to see us an irreligious people; they did

not intend to prohibit a just expression of religious devotion

by the legislators of the nation, even in their public

character as legislators; they did not intend to spread over

all the public authorities and the whole public action of the

nation the dead and revolting spectacle of atheistical

apathy.

S. Rep. No. 32-376 (1853).

As late as 1954 when Congress placed the words “under

God” in the Pledge of Allegiance, President Dwight

Eisenhower explained that such had been done to “reaffirm[]

the transcendence of religious faith in America's heritage and

future; in this way we shall constantly strengthen those

spiritual weapons which forever will be our country’s most

powerful resource in peace and war.” Speech of June 14,

1954, reprinted in William J. Federer, Treasury of Presidential

Quotations 313-14 (2004).

These quotes from important figures throughout the history

of the United States illustrate what this Court affirmed in

Abington: “[T]hat the Founding Fathers believed devotedly

that there was a God and that the unalienable rights of man

were rooted in Him is clearly evidenced in their writings, from

the Mayflower Compact to the Constitution itself.” Abington,

374 U.S. at 213. Thus, the Constitution was not intended to

require, nor until relatively recently was it interpreted to

require, that God must be devalued in the public square in an

attempt to achieve “neutrality” which supposedly prevents the

possibility of some passerby suffering offense at the mention

of God.

D. This Court should return to the fixed rule of the

constitutional text.

Despite the obvious intention of the Constitution, made

manifestly plain by the text of the First Amendment, this Court

has elected to stray from text and instead has formulated tests,

e.g., Lemon, “endorsement,” “coercion,” in the name of a kind

of “neutrality” toward religion that is historically inaccurate

and practically impossible to achieve. When the Court does

this, it steps outside its proper role as an interpreter of the text

and lays aside judicial robes in exchange for legislative pens,

which is exactly what the Constitution, and the Establishment

Clause in particular, is supposed to prevent.

Chief Justice Marshall asked in Marbury, “Why does a

judge swear to discharge his duties agreeably to the

constitution of the United States, if that constitution forms no

rule for his government?” 5 U.S. at 180. One dissenter in the

infamous case of Dred Scott chastised the errant majority for

not only rejecting the fundamental worth of a person, but the

fundamental principles of constitutional interpretation. This

Court would do well to consider Justice Benjamin Curtis’s

148-year-old but still-relevant warning:

And when a strict interpretation of the Constitution,

according to the fixed rules which govern the interpretation

of laws, is abandoned, and the theoretical opinions of

individuals are allowed to control its meaning, we have no

longer a Constitution; we are under the government of

individual men, who for the time being have power to

declare what the Constitution is, according to their own

views of what it ought to mean. When such a method of

interpretation of the Constitution obtains, in place of a

republican Government, with limited and defined powers,

we have a Government which is merely an exponent of the

will of Congress; or what, in my opinion, would not be

preferable, an exponent of the individual political opinions

of the members of this court.

Dred Scott v. Sandford, 60 U.S. 393, 620-621 (1856) (Curtis,

J., dissenting).

ee ee ee a ee ee eee eee eee ee

For too long, the “strict interpretation of the Constitution”

has been abandoned, and “fixed rules” no longer govern

Establishment Clause cases. This Court ought to decide this

case according to the plain, and still unsullied, text of the First

Amendment’s Establishment Clause. See Marbury, 5 U.S. at

180.

II. THE KENTUCKY COUNTIES’ COURTHOUSE TEN

COMMANDMENTS DISPLAYS ARE NOT

UNCONSTITUTIONAL BECAUSE THEY ARE NOT

“LAW[S] RESPECTING AN ESTABLISHMENT OF

RELIGION.”

The First Amendment states, in relevant part, “Congress

shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof... .” U.S. Const. amend

I. Whether the Ten Commandments were displayed alone or

surrounded by a context of historical documents, in no way

could the Counties’ act of erecting the Ten Commandments be

a “law respecting an establishment of religion.”

A. Neither the displays, nor the Counties’ actions in

relation to the displays, are “law{s].”

The Establishment Clause on its face restricts “laws,” and

this Court has recognized that the Clause was designed to

restrict the exercise of “legislative power.” See Santa Fe

Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000). In

“religious display” cases, however, this Court has, in effect,

expanded its own power by unconstitutionally amending the

Establishment Clause, ruling that the Clause may be violated

> Amicus will not address herein the compelling argument that the

Establishment Clause, with its restriction upon only “Congress,” should not

be “incorporated” against the states and local governments through the

guise of the Fourteenth Amendment. Such an argument is a worthy pursuit

for another brief (or book), but is hardly necessary to the textual argument

raised in this brief.

either by a “statute or practice.” See Allegheny, 492 U.S. at

592. Contrary to Lemon’s claim that “[t]he language of the

Religion Clauses of the First Amendment is at best opaque”

and that this Court, therefore, “must draw lines” delineating

what is constitutionally permissible, the text of the

Establishment Clause contains a definite, straightforward

meaning. Lemon, 403 U.S. at 612.

In its review of this case, the Sixth Circuit, like the district

court below, incorrectly assumed that the actions of the

Counties in erecting the courthouse displays that included the

Ten Commandments amounted to “laws.” However, not every

action taken by a county under its constitutional and statutory

authority constitutes a law.

At the time of the ratification of the First Amendment, Sir

William Blackstone had defined a “law” as “a rule of civil

conduct . . . commanding what is right and prohibiting what is

wrong.” I W. Blackstone, Commentaries on the Laws of

England 44 (U. Chi. Facsimile Ed. 1765). Noah Webster’s

1828 Dictionary states that “[l]aws are imperative or

mandatory, commanding what shall be done; prohibitory,

restraining from what is to be forborn; or permissive, declaring

what may be done without incurring a penalty.” N. Webster,

American Dictionary of the English Language (Foundation for

American Christian Educ. 2002) (1828) (emphasis in original).

The Counties have made no law. By erecting these

courthouse displays, the Counties do not command any action

from their-residents, nor do they restrain them from any action

or conduct that they wish to pursue. Likewise, the Counties

have not stated or implied any intent to command their

residents to perform any action or to prohibit their residents

from any conduct by means of the courthouse displays.

McCreary and Pulaski counties, like all Kentucky counties,

have the statutory authority to “enact ordinances [and] issue

regulations” in performance of certain public functions. Ky.

Rev. Stat. Ann. § 67.083(3) (Banks-Baldwin 2000). The

Counties did not use their lawmaking authority; instead, they

put up a wall display.

The Ten Commandments displays are simply displays on

the wall of a government building, not an “ordinance” or

“regulation” enacted or enforced by the Counties. In fact, there

is no allegation by the plaintiffs of coercion of any kind;

instead, they alleged merely that “they must come into contact

with the display of the Ten Commandments whenever they

enter the courthouse to conduct business.” ACLU of Kentucky

v. McCreary County, Ky., 96 F. Supp. 2d 679, 682 (E.D. Ky.

2000).

Similar to an executive Thanksgiving proclamation, the

courthouse displays “ha[ve] not the force of law, nor [were

they] so intended.” Richardson v. Goddard, 64 U.S. (How.)

28, 43 (1859) (“The proclamation . . . is but a recommendation.

.. . The duties of fasting and prayer are voluntary, and not of

compulsion, and holiday is a privilege, not a duty... . It is an

excellent custom, but it binds no man’s conscience or requires

him to abstain from labor”). At most, it could be argued that

the courthouse displays serve as a reminder to citizens of

certain standards of conduct. Thus, because the courthouse

displays that include the Ten Commandments are not “law{s],”

the Counties’ displays do not violate the Establishment Clause.

B. The Counties’ courthouse displays do not respect

“an establishment of religion.”

The Ten Commandments displays at issue do not violate

the Establishment Clause because they do not “respect,” i.e.,

concern or relate to, “an establishment of religion.” U.S.

Const. amend. I (emphasis added.)

1. The definition of “religion”

The original definition of “religion” as used in the First

Amendment was provided in Article I, § 16 of the 1776

Virginia Constitution, in James Madison’s Memorial and

Remonstrance, and was embraced by this Court in Reynolds v.

United States, 98 U.S. 145 (1878), and Davis v. Beason, 133

U.S. 333 (1890). It was repeated by Chief Justice Charles

Evans Hughes in his dissent in United States v. Macintosh, 283

U.S. 605 (1931), and the influence of Madison and his

Memorial on the shaping of the First Amendment was

emphasized in Everson v. Bd. of Educ., 330 U.S. 1 (1947).

“Religion” was defined as: “The duty which we owe to our

Creator, and the manner of discharging it.” Va. Const. of

1776, art. I, § 16; see also Reynolds, 98 U.S. at 163-66;

Beason, 133 U.S. at 342; Macintosh, 283 U.S. at 634 (Hughes,

C.J., dissenting); Everson, 330 U.S. at 13. According to the

Virginia Constitution, those duties “can be directed only by

reason and conviction, and not by force or violence.” Va.

Const. of 1776, art. 1, § 16.

In Reynolds, this Court considered and rejected the

argument that the First Amendment definition of religion

included the practice of polygamy. In arriving at its

conclusion, the Court applied the definition of “religion”

contained in the Virginia Constitution as controlling the

meaning of that term in the First Amendment. Reynolds, 98

U.S. at 163-66. It thereby found that the duty not to enter into

a polygamous marriage was not religion—that is, a duty owed

solely to the Creator—but was “an offense against [civil]

society,” and therefore, “within the legitimate scope of the

power of. . . civil government.” Jd.

* The U.S. Supreme Court later reaffirmed the discussions of the

meaning of the First Amendment found in Reynolds, Beason, and the

Macintosh dissent in Torcaso v. Watkins, 367 U.S. 488, 492 n.7 (1961).

—-

In Beason, the Court affirmed its decision in Reynolds,

reiterating that the definition that governed both the

Establishment and Free Exercise Clauses was the

aforementioned Virginia constitutional definition of “religion.”

The term “religion” has reference to one’s views of his

relations to his Creator, and to the obligations they impose

of reverence for his being and character, and of obedience

to his will. . . . The first amendment to the constitution, in

declaring that congress shall make no law respecting the

establishment of religion or forbidding the free exercise

thereof, was intended to allow everyone under the

jurisdiction of the United States to entertain such notions

respecting his relations to his Maker and the duties they

impose as may be approved by his judgment and

conscience... .

Beason, 133 U.S. at 342 (emphasis added).

In Macintosh, this Court’s decision resulted in the denial of

the respondent’s application for citizenship by naturalization

because the respondent refused to take an oath to bear arms in

defense of the United States on the ground that he would have

to believe the war in question was morally justified before he

would take such action. 283 U.S. at 613-14, 618.° Chief

Justice Hughes dissented in Macintosh, believing that the

respondent’s refusal to take the oath based on religious

principle ought not disqualify him from citizenship. In part,

Chief Justice Hughes reasoned:

The essence of religion is belief in a relation to God

involving duties superior to those arising from any human

relation. As was stated by Mr. Justice Field, in Davis v.

Beason, . . . : “The term ‘religion’ has reference to one’s

* The Macintosh decision was later reversed by this Court in Girouard

v. United States, 328 U.S. 61 (1946).

views of his relations to his Creator, and to the obligations

they impose of reverence for his being and character, and

of obedience to his will.” One cannot speak of religious

liberty, with proper appreciation of its essential and historic

significance, without assuming the existence of a belief in

supreme allegiance to the will of God.

Macintosh, 283 U.S. at 633-34 (Hughes, C.J., dissenting).

Thus, Chief Justice Hughes’s dissent in Macintosh was rooted

in the historic constitutional definition of religion, a definition

that presupposes God.

Sixteen years later in Everson, this Court noted that it had

“previously recognized that the provisions of the First

Amendment, in the drafting and adoption of which Madison

and Jefferson played such leading roles, had the same objective

and were intended to provide the same protection against

governmental intrusion on religious liberty as the Virginia

statute [Jefferson’s 1785 Act for Establishing Religious

Freedom].” Everson, 330 U.S. at 13. The “Virginia statute”

explicitly founded its declaration of religious freedom on the

basis that “Almighty God hath created the mind free” and that

“all attempts to influence-it by temporal punishments, or

burthens, or by civil incapacitations . . . are a departure from

the plan of the Holy Author of our religion... .” Virginia Act

for Establishing Religious Freedom (1785), reprinted in 5 The

Founder's Constitution 84 (Kurland and Lerner eds., U. Chi.

Press: 1987).

The Everson Court also emphasized the importance of

Madison’s “great Memorial and Remonstrance,” which

“received strong support throughout Virginia,” and played a

pivotal role in garnering support for the passage of the Virginia

statute. Jd. at 12. Indeed, Madison’s Memorial offered as the

first ground for the disestablishment of religion the express

definition of religion found in the 1776 Virginia Constitution.

For good measure, Justice Rutledge attached Madison’s

Memorial as an appendix to his dissent in Everson which was

joined by Justices Frankfurter, Jackson, and Burton. See id. at

64.

Thus, this Court has recognized that the constitutional

definition of the term “religion” is “[t]he dut[ies] which we

owe to our Creator, and the manner of discharging [them].”

Va. Const. of 1776, art. I, § 16; see also, Cantwell vy.

Connecticut, 310 U.S. 296, 303, (1940) (“The constitutional

inhibition of legislation on the subject of religion . . . forestalls

compulsion by law of the acceptance of any creed or the

practice of any form of worship”). Assuming, arguendo, that

the Counties’ actions of erecting the courthouse displays are in

some sense “law{s],” such action cannot be considered laws

concerning “religion” because, while the Ten Commandments

address duties owed to the Creator, they do not address the

manner of discharging those duties. For example, the

commandment to “honor thy father and thy mother” does not

dictate how this command is to be fulfilled; indeed, different

religions and sects (i.e., Protestantism, Catholicism, Judaism,

Islam, etc.) detail different ways in which to fulfill this

commandment. Something that constitutes a “religion” under

the Establishment Clause must inform the follower not only

what to do (or not do), but also how those commands and

prohibitions are to be carried out. The Ten Commandments,

by themselves, do not do both of these and hence cannot be

considered a “religion” under the constitutional definition of

the term.

Instead, these displays, by including the Ten

Commandments, acknowledge God as the moral and historical

foundation of the country’s legal system. Examples of such

acknowledgments are replete throughout our history.

Thanksgiving proclamations encouraging citizens to offer

gratitude to God for “His kind care and protection” have been

issued by Presidents of the United States ever since George

Washington issued the first one on October 3, 1789. See 4 The

Papers of George Washington, Presidential Series 131-32 (W.

W. Abbot et al. eds. 1987). Since the passage of the Judiciary

Act of 1789, all federal judicial officers have been required to

take an oath of office swearing to support the United States

Constitution that concludes with the phrase, “So help me God.”

See 28 U.S.C. § 453.

“In God We Trust” was first placed on the nation’s coinage

in 1864 to demonstrate, as then-Secretary of the Treasury

Salmon P. Chase explained, the “[nJational recognition” of

“{t]he trust of our people in God.” See Fact Sheets: Currency

& Coins—History of “In God We Trust,’ United States

Department of the Treasury, at http://www.ustreas.gov/

education/fact-sheets/currency/in-god-we-trust.html. The

motto has appeared on all U.S. coins since 1938 and on all

currency since 1964. Id.

As was previously mentioned, the words “under God” were

added to the Pledge of Allegiance in 1954. See 4 U.S.C. § 4.

The report from the House of Representatives that

accompanied the legislation observed that, “[f]rom the time of

our earliest history our peoples and our institutions have

reflected the traditional concept that our Nation was founded

on a fundamental belief in God.” H.R. Rep. No. 83-1693, at 2

(1954).

Posting the Ten Commandments, particularly in public

facilities in which the law is adjudicated, represents another

acknowledgment of God fitting with the tradition and

obligation performed throughout the nation’s history. Under

no version of the facts presented could it be said that these

courthouse displays represent an attempt by the Kentucky

Counties to dictate the duties that their residents owe to the

Creator, or to enforce the manner in which the residents should

discharge those duties. Consequently, the courthouse displays

are not laws respecting an establishment of “religion.”

2. The definition of “establishment”

Even if it is assumed that the courthouse displays are

“law[s]” under the First Amendment—which they are not

and even if it is assumed that the displays pertain to “religion”

under the First Amendment—which they do not—the

courthouse displays do not represent an “establishment” of

religion. :

An “establishment” of religion, as understood at the time of

the adoption of the First Amendment, involved “the setting up

or recognition of a state church, or at least the conferring upon

one church of special favors and advantages which are denied

to others.” Thomas M. Cooley, General Principles of

Constitutional Law, 213 (Weisman pub. 1998) (1891). Joseph

Story explained in his Commentaries on the Constitution that

“[t]he real object of the amendment was . . . to prevent any

national ecclesiastical establishment, which should give to an

[sic] hierarchy the exclusive patronage of the national

government.” II J. Story, Commentaries on the Constitution §

1871 (1833). In the congressional debates concerning the

passage of the Bill of Rights, James Madison stated that he

“apprehended the meaning of the [Establishment Clause] to be,

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.” 1 Annals of

Cong. 757 (1789) (Gales & Seaton’s ed. 1834). The House

Judiciary Committee in 1854 summarized these thoughts in a

report on the constitutionality of chaplains in Congress and the

army and navy, stating that an “establishment of religion”

must have a creed defining what a man must believe; it

must have rites and ordinances which believers must

observe; it must have ministers of defined qualifications, to

teach the doctrines and administer the rights; it must have

tests for the submissive, and penalties for the non-

conformist. There never was an established religion without

all these.

H.R. Rep. No. 33-124 (1854).

At the time of its adoption, therefore, “[t]he text [of the

Establishment Clause] . . . meant that Congress could neither

establish a national church nor interfere with the establishment

of state churches as they existed in the various states.”

Michael W. McConnell, Accommodation of Religion: An

Update and Response to the Critics, 60 Geo. Wash. L. Rev.

685, 690 n.19 (1992). This Court’s precedent is in agreement

with this assessment, as the Court concluded that “for the men

who wrote the Religion Clauses of the First Amendment the

‘establishment’ of a religion connoted sponsorship, financial

support, and active involvement of the sovereign in religious

activity.” Walz v. Tax Comm'n of City of New York, 397 U.S.

664, 668 (1970). :

The Counties’ courthouse displays that include depictions

of the Ten Commandments do not in any fashion represent the

setting up of a state-sponsored church, nor do they in any way

lend government aid to one faith over another. Indeed, the text

of the Ten Commandments used in the displays is simply taken

directly from the King James Version of the Bible and does not

include a numbering of the commandments, thus it is a

deliberately non-sectarian version of the Ten Commandments.

McCreary, 354 F.3d at 443 n.2. Moreover, the displays require

negligible upkeep by the Counties. |

This Court and multiple lower courts have recognized that

the Ten Commandments hold an important place in this

country’s historical and legal tradition. See, e.g., Edwards v.

Aguillard, 482 U.S. 578, 594 (1987) (“the Ten Commandments

[did not] play{] an exclusively religious role in the history of

Western Civilization.”); King v. Richmond County, 331 F.3d

1271, 1282 (11th Cir. 2003) (“Much of our private and public

law derives from these final six commandments.”); Van Orden

v. Perry, 351 F.3d 173, 181 (Sth Cir. 2003) (“Even those who

would see the decalogue as wise counsel born of man's

experience rather than as divinely inspired religious teaching

cannot deny its influence upon the civil and criminal laws of

this country. That extraordinary influence has been repeatedly

acknowledged by the Supreme Court and detailed by scholars.

Equally so is its influence upon ethics and the ideal of a just

society.”); and Books v. Counties of Elkhart, Indiana, 235 F.3d

292, 302 (7th Cir. 2000), cert. denied, 532 U.S. 1058 (2001)

(“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.”’).

Given the undeniable general influence of the Ten |

Commandments in this country’s historical and legal tradition

and the lack of any showing that the Counties’ courthouse

displays show support for or give aid to a particular church or

religious sect, the displays cannot be said to concern an

“establishment” of religion. Therefore, no portion of the

Establishment Clause of the First Amendment prohibits public

displays of the Ten Commandments.

CONCLUSION

For the reasons stated, this Honorable Court should reverse

the Court of Appeals’ decision below and hold that the Ten

Commandments displays at issue do not violate the United

States Constitution, that is, the text thereof.

Respectfully submitted,