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

IAN 7 ~ 2005

_ FIC E OF THE CLERK |

—_

No. 03-1693

IN THE

Supreme Court of the Wuited States

McCreary County, Kentucky, et al.,

Petitioners,

Vv.

ACLU of Kentucky, et al.,

Respondents.

On a Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

BRIEF OF

FREEDOM FROM RELIGION FOUNDATION

AS AMICUS CURIAE ~

IN SUPPORT OF THE RESPONDENTS

James A. Friedman *

James D. Peterson

LaFollette Godfrey & Kahn

One East Main Street, Suite 500

Madison, WI 53701-2719

(608)257-3911

*Counsel of Record

QUESTIONS PRESENTED -

1. Whether the Establishment Clause is violated by a

privately donated display on government property that

includes eleven equal size frames containing an explanation

of the display along with nine historical documents and

symbols that played a role in the development of American

law and government where only one of the framed

documents is the Ten Commandments and the remaining

documents and symbols are secular.

2. Whether a prior display by the government in a

courthouse containing the Ten Commandments that was

enjoined by a court permanently taints and thereby

precludes any future display by the same government when

the subsequent display articulates a secular purpose and

where the Ten Commandments is a minority among

numerous other secular historical documents and symbols.

3. Whether the Lemon test should be overruled since

the test is unworkable and has fostered excessive confusion

in Establishment Clause jurisprudence.

4. Whether a new test for Establishment Clause

purposes should be set forth by this Court when the

government displays or recognizes historical expressions of

religion.

TABLE OF CONTENTS B. The Foundations Display

communicates the

government's endorsement of

INTEREST OF AMICUS CURIAE ..scssssesssssesneentetenesee 1 eee -

SUMMARY OF THE ARGUMENT .cessscsssssssssssnsssssseneseenes 3 > Seeeeee on

Commandments is

TINIE ii. ccssicisceelissimaiiipaeaiinabemadaaanaciiol 5 | inherently religious

and highly sectarian............ 18

I. This Court should expressly adopt ;

Justice O’Connor’s endorsement test 2. the Foundations

for evaluating the governmental Display does not

display of religious texts and symbol.......... 5 negate the message of

| religious endorsement

A. The endorsement test protects _ that attends the display

the political standing of non- of the text of the Ten

believers and members of Commandments. .........0000+ 20

other religious minorities.................. 6

TITTY selaihidatieditcianedeteiiaioineninnicictctneasencineatnanennesentnesies 22

B. The government's intended

purpose is a proper

consideration under the

IN IID: cccnccnstenesscenierenentcnnness 9

Il. Under the endorsement test, the

“Foundations Display” in the

courthouses violates the

Establishment Clause. ........................00...0.... 13

A. The Foundations Display does

not have a genuinely secular

PREIPGDR,. oscccecccsosesccesececevecssecssosnossnecne 13

TABLE OF AUTHORITIES

Cases

Abington School Dist. v. Schempp, 374 U.S. 203 (1963) ....... 6, 17

American Civil Liberties Union v. McCreary County, 354

F.3d 438(6th Cir. 2003), cert. granted, 125 S. Ct. 310

(FIFI 2 220200010000corsccccesossossensesnesesusopsasssconscsosonsssessassseseseees passim

Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000),

eave. Dame, THE VED. TE Ge eecensscnccarsnscssenissercrsssesmeevente 21

County of Allegheny v. American Civil Liberties Union,

BT D. FES CID ectesncesnnsennsncnsnnsennnmviisnninianannn 5, 6, 19, 21

Doe v. Harlan County School Dist., 96 F. Supp. 2d 667

OB.BD. Bip. BRED nxacececesscnrsseconstzcrsensesensunspenesesomessomnanensemsesoneovts 7

Doe v. Porter, 370 F.3d 558 (6th Cir. 2004)........cccceesssseeeeeeseees 8

Doe v. Stegall, 653 F.2d 180 (Sth Cir. 1981)........cccccscseeseeeseneeees 7

Edwards v. Aguillard, 482 U.S. 578 (1987) .......scssseseseseerereeseneees 9

Lemon v. Kurtzman, 403 U.S. 602 (1971) .......ccecsesseseeseeees passim

/

Lynch v. Donnelly, 465 U.S. 668 (1984)........ccccceseesesenenees passim

Mercier v. City of La Crosse, 305 F. Supp. 2d 999 (W.D.

Wis. 2004), rev'd 2005 U.S. App. Lexis 9 (7th Cir.

Date, Bi, SD ccerssenapennncsnrecinenenmnnnennummenmmanninnnnuaeianaenns 2

Stone v. Graham, 449 U.S. 39 (1980)..........cccceeeeeeeee 17, 18, 19, 20

iv

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

QPOMIRT, 12D S. CR. BOG CII oaerccsinsccesesesnccsnssenessesensersscesee 2, 22

Wallace v. Jaffree, 472 U.S. 38 (1985) ........cscscssesesseseeceseeees 7,9,11

Constitutional Provision

SP GR, NB cceenisinisnciiicninseniconnesinisnineaiaes 5, 7, 9, 11, 13

- Other Authorities

The Harvard Pluralism Project: Statistics by

Tradition, available at http://www.pluralism.org/

resources/statistics/tradition.php (last visited

FU Th TED wesc ectinvtntancieneceemtenieimnnniensnnnuananmmnnennennenes 7

Barry A. Kosmin & Egon Mayer, American Religious

Identification Survey, Key Findings, available at

http://www.gc.cuny.edu/studies/

key_findings.htm (last visited January 4, 2005).............. 1,7

The National Archives Experience, Charters of

Freedom, Declaration of Independence, available

at http://www.archives.gov/

national_archives_experience/charters/declaration.

NE Se Nh, Gh MI criiscccinncsersiitinensetesennttiictsicinti 16

Radical Pragmatics (Peter Cole, ed, 1981) ...........sscevesesesesees 10

Dan Sperber and Dierdre Wilson, Relevance:

Communication and Cognition (1986) .........cssesesseseseeeeeeseees 10

INTEREST OF AMICUS CURIAE

The Freedom From Religion Foundation, Inc. (the

“FFRF”) is a non-profit educational group whose two

primary purposes are to promote the constitutional

principle of separation of state and church and to educate

the public on matters relating to nontheism.' The FFRF was

incorporated in Wisconsin in 1978, and it now has more

than 5,000 members, who generally describe themselves as

“freethinkers,” a label intended to include atheists, agnostics

and rational skeptics of any pedigree. Those who identify

themselves as secular or non-believers are a substantial and

rapidly growing segment of the American population,

constituting ten to fourteen percent of the adult population

in 2001.?

The activities of the FFRF are described in the brief

amicus curiae filed by the FFRF in the appeal of Van Orden v.

Perry, 351 F.3d 173 (5th Cir. 2003), cert. granted, 125 S.Ct. 346

' The parties to this appeal have consented to the FFRF’s filing of this brief

amicus curiae. The Respondents’ blanket consent to the filing of briefs

amicus curiae is on file with the Court, and the Petitioners’ written

consent to the FFRF’s filing is submitted with this Brief. Pursuant to

Supreme Court Rule 37.6, the FFRF states that no counsel for any party

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

than the FFRF, its affiliates, or counsel made a monetary contribution to

the preparation or submission of this brief.

2 Barry A. Kosmin & Egon Mayer, American Religious Identification Survey,

Key Findings, available at _http://www.gc.cuny.edu/studies/

key_findings.htm (last visited January 4, 2005).

1

(2004). Accordingly, that information will not be repeated in

full here. The FFRF’s activities include a variety of

educational programs and, when necessary, litigation. More

information about the FFRF, its programs, and its legal

successes is available at its web site, www. ffrf.org.

The FFRF is particularly concerned with the display of

the Ten Commandments on government property, which

has the effect of casting non-believers as outsiders to the

political community. That concern has motivated the FFRF

to challenge a number of such displays, notably those in the

form of the monuments donated by the Fraternal Order of

Eagles in the 1950s and 1960s. See, e.g., Mercier v. City of La

Crosse, 305 F. Supp. 2d 999 (W.D. Wis. 2004), rev’d 2005 U.S.

App. Lexis 9 (7th Cir. Jan. 3, 2005).

The FFRF’s concern with the display of the Ten

Commandments led it to file an amicus brief in the Van

Orden appeal, which involves an_ Eagles’ Ten

Commandments Monument. The FFRF’s amicus brief

suggests several principles concerning how _ the

endorsement test proposed by Justice O’Connor in Lynch v.

Donnelly, 465 U.S. 668 (1984), should be applied to the

display of the Ten Commandments. In this amicus brief, the

FFRF would like to show how those principles apply to the

“Foundations Display” at issue in the appeal of American

Civil Liberties Union v. McCreary County, 354 F.3d 438 (6th

Cir. 2003), cert. granted, 125 S. Ct. 310 (2004).

SUMMARY OF THE ARGUMENT

This Court should not overrule Lemon v. Kurtzman, 403

U.S. 602 (1971), but it should refine the Lemon test by

expressly adopting the endorsement test articulated by

Justice O’Connor in Lynch v. Donnelly, 465 U.S. 668 (1984)

(O’Connor, J., concurring). The endorsement test properly

protects the political standing of non-believers and other

religious minorities, who cannot participate equally in the

civic life of the nation if government is allowed to endorse

specific religious precepts, such as those expressed in the

Ten Commandments. In applying the endorsement test, a

reviewing court should consider the governmental purpose

in displaying religious material, because the speaker's intent

is part of the meaning conveyed by any act of

communication. The governmental purpose in displaying

religious material is no more difficult to determine and

evaluate than legislative intent, which routinely guides

judicial statutory interpretation.

The FFRF’s amicus brief in Van Orden suggests two

principles concerning how the endorsement test should be

applied to the display of the Ten Commandments—

principles that are usefully applied to this case. First, certain

governmental purposes, such as “commemoration,” cannot

be evaluated in the abstract apart from the object of

commemoration. The commemoration of a predominately

religious object is not a genuinely secular purpose. So it is

with the purportedly secular “educational” purpose of the

Foundations Display at issue in this case. The government's

intent to “educate” citizens that the Ten Commandments

provides the moral foundation of the Declaration of

3

Independence is not a genuinely secular purpose. Such

“education” is tantamount to the government's declaration

that ours is a Christian nation, which is an impermissible

endorsement of religion.

Second, the display of a religious text, more than the

display of religious imagery or symbols, inevitably tends to

suggest endorsement. The Ten Commandments is an

inherently religious and intensely sectarian text, and the

context of the Foundations Display enhances, rather than

diminishes, the message of government endorsement of

religion. To any reasonable observer, the Foundation

Display states that our nation is devoted to, and divinely

guided by, the God of the Bible.

ARGUMENT

I. This Court should expressly adopt Justice

O’Connor’s endorsement test for evaluating the

governmental display of religious texts and

symbols.

For more than three decades, this Court's Establishment

Clause jurisprudence has been guided by some version of

the three-part test articulated in Lemon v. Kurtzman, 403 U.S.

602 (1971). Although a majority of this Court has criticized

Lemon at one time or another, another majority appears

prepared to embrace Justice O’Connor’s endorsement

analysis, based on Lemon, which she articulated in Lynch v.

Donnelly, 465 U.S. 668, 687-94 (1984) (O’Connor, J.,

concurring), and which she has refined in several cases

since, notably County of Allegheny v. American Civil Liberties

Union, 492 U.S. 573, 623-37 (1989) (O’Connor, J., concurring).

Under the endorsement test, the Establishment Clause of the

First Amendment is violated by

government endorsement or disapproval of religion.

Endorsement sends a message to nonadherents that

they are outsiders, not full members of the political

community, and an accompanying message to

adherents that they are insiders, favored members of

the political community. Disapproval sends the

opposite message.

Lynch, 465 U.S. at 688.

A. The endorsement test protects the political

standing of non-believers and members of

other religious minorities.

The endorsement test does not permit government

hostility, or even mandate silence, on the subject of religion.

C.f,, Allegheny, 492 U.S. at 659 (Kennedy, J., concurring in

part and dissenting in part) (quoting Abington School Dist. v.

Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring)).

But the endorsement test does require that the government

not take sides, or even appear to take sides, on issues of

religious faith. This neutrality is constitutionally required

not because it protects the feelings of members of religious

minorities, but because, as Lynch makes clear, it protects

their standing in the political community. Religious beliefs are,

as numerous amici have pointed out,’ vitally important to a

majority of Americans. It is precisely because of the intensity

of religious feelings among so many people that

government must remain scrupulously neutral in religious

matters. A member of a religious minority simply cannot

participate in the political process on an equal footing when

the government itself appears to embrace the views of the

religious majority.

The problem is particularly acute for non-believers.

Earlier in our nation’s history, our notion of religious

> See, e.g., Brief Amicus Curiae of the Becket Fund for Religious Liberty in

Support of Petitioners (filed Dec. 8, 2004 in No. 03-1693); Brief of the

American Legion as Amicus Curiae In Support of Petitioners (filed

Dec. 8, 2004 in No. 03-1693).

diversity encompassed only diversity among Christian

sects, and it would have seemed appropriate for our

government to ignore Jews and other religious minorities in

its acknowledgment of the religious beliefs and practices of

our citizens. Wallace v. Jaffree, 472 U.S. 38, 52 (1985). But

today, even passive anti-Semitism on the part of

government would be an outrage; even proponents of the

governmental display of the Ten Commandments

apparently accept the necessity of acknowledging the beliefs

of Jews, who constitute approximately two percent of the

American population.‘ But the Petitioners in this case would

permit the government to disregard the convictions of non-

believers, who now constitute between ten and fourteen

percent of the United States population.°

Of course, non-believers risk more than being

disregarded. Those who publicly criticize governmental

involvement in religion are commonly subjected to abuse.

This abuse is sometimes so severe that plaintiffs in

Establishment Clause cases are allowed to proceed

anonymously. See, e.g., Doe v. Harlan County School Dist., 96

F. Supp. 2d 667, 670 (E.D. Ky. 2000) (permitting plaintiffs to

proceed anonymously with challenge to display of Ten

Commandments); Doe v. Stegall, 653 F.2d 180, 185 (5th

* The Harvard Pluralism Project: Statistics by Tradition, available at

http://www.pluralism.org/resources/statistics/tradition.php (last visited

Jan. 5, 2005); see also American Religious Identification Survey, supra note

2.

> American Religious Identification Survey, supra note 2.

7

Cir. 1981) (permitting plaintiffs to proceed anonymously

with challenge to prayer and Bible reading exercises in

public school); Doe v. Porter, 370 F.3d 558 (6th Cir. 2004)

(affirming challenge by parents of school children and FFRF

to Bible classes in public schools in which individual

plaintiffs were allowed to proceed anonymously). FFRF

personnel are themselves commonly subjected to intense

harassment and physical threats as a result of their advocacy

of the separation of church and state. As one federal court

summed up the situation faced by the FFRF and the

plaintiffs in a challenge to the display of the Ten

Commandments:

It would be a refreshing surprise if the [plaintiffs]

were spared the vituperation customarily heaped

upon plaintiffs in lawsuits of this sort. But that’s not

likely. Given what usually happens in these cases

and given what has already been said, the defenders

of the Ten Commandments likely will continue their

verbal assault on the [plaintiffs] and the FFRF.

Religious challenges are not for the faint of heart and

the [plaintiffs] probably realized this before they

decided to file their complaint.

Mercier v. City of La Crosse No. 02-C-0376-C (W.D. Wis.

July 29, 2002) (order denying plaintiffs’ motion to proceed

anonymously). Such zealotry is not characteristic of the

majority of Americans, but the pervasiveness of this abuse

demonstrates the intensity of feeling that prevents the non-

believer from participating equally in the political process.

The ultimate question in this appeal, as in Van Orden, is

8

whether government may declare ours to be a nation of

God—or even a Christian nation—so long as no one is

compelled to worship against their belief. But this is not a

genuine religious freedom: we are not truly free to worship

or not as we choose if we can exercise that freedom only by

sacrificing our full participation in the political community.

Only the endorsement test protects the rights of religious

minorities to full participation in the political community.

B. The government's intended purpose is a

proper consideration under the

endorsement test.

The primary difference between the Lemon test and the

endorsement test is the role of the government's purpose in

the Establishment Clause analysis. Under the purpose

prong of the Lemon test, a government act is

unconstitutional unless it has a secular purpose. Lemon, 403

U.S. at 612. Under the endorsement test, the proper inquiry

is “whether the government intends to convey a message of

endorsement or disapproval of religion.” Lynch, 465 U.S. at

691 (O’Connor, J., concurring).

Critics of the Lemon test contend that the inquiry under

its first prong into governmental purpose is improper

because it leads the reviewing court to “psychoanalyze”

individual government officials, which focuses on irrelevant

personal motives and produces inconsistent results. Brief for

Petitioners at 36-39 (filed Dec. 8, 2004 in No. 03-1693) (citing

Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia, J.,

dissenting), and Wallace v. Jaffree, 472 U.S. at 108 (Rhenquist,

J., dissenting)). The endorsement test is not concerned with

9

the private motives of government officials and it avoids

this problem. Under the endorsement test, governmental

intent is one factor that determines whether observers will

view a display of religious material as an endorsement of

religion.

The government's intent is a relevant consideration

under the endorsement test because a speaker's intent is a

significant component of the meaning of the message

conveyed. Lynch, 465 U.S. at 690 (O’Connor, J., concurring).

The meaning we take from any act of communication,

whether a conversation, a work of art, or a symbolic display,

is determined in large measure by the inferences we draw

about the speaker's intent. For example, the utterance “nice

job” means one thing when it is said by someone who we

believe intends a sincere compliment, but it means quite

another thing when said by someone who we believe

intends to criticize. To the extent that we know, or can infer

from the circumstances, what was intended by an act of

communication, that knowledge greatly influences the

meaning of the communication. In fact, some contemporary

linguists contend that inferences about the intent of the

speaker are more important to the meaning conveyed to the

recipient than the conventional content derived from word

meanings and syntax. See, e.g., Radical Pragmatics (Peter

Cole, ed., 1981); Dan Sperber and Dierdre Wilson, Relevance:

Communication and Cognition (1986).

This concern for governmental intent does not mean that

the endorsement test must focus on the “subjective motives”

of government officials, as the Petitioners suggest. Brief for

Petitioners at 7, 36-39. This Court has made clear that the

10

actual mental state of the individual legislator or

government official is immaterial to the Constitutionality of

the governmental act. See, e.g., Wallace v. Jaffree, 472 US. at

74 (O’Connor, J., concurring). For example, a legislator may

be subjectively motivated purely by religious conviction to

vote for a public welfare program without posing any

Establishment Clause problem. No reasonable observer

would consider a public welfare program to communicate

an endorsement of religion because some—or even all—of

the legislators who voted for it were motivated by Christian

charity.

The issue is not the subjective motives of the individual

legislator or official; the issue is the government's intended

purpose, which is demonstrated by the public acts and

statements of the government itself. Thus conceived, the

governmental purpose for a religious display is no more

difficult to discern than the legislative intent behind a

statute, and reviewing courts discern this legislative intent

every day in the process of statutory interpretation. In so

doing, a court does not “psychoanalyze” the individual

legislator, the court discerns the purpose of legislation by

analyzing the terms of the legislation itself, its context,

statements of legislative purpose, and legislative history.

The legislative intent is determined through a rational,

objective process from the public statements and acts of the

government. Discerning legislative intent is sometimes a

difficult process, but the answer to the question “What was

the legislature trying to do?” is nevertheless crucial to

determining the meaning of a statute.

Under the endorsement test, reviewing courts must

11

conduct a similar analysis of the governmental purpose

behind display of religious texts or symbols. The reasonable

observer will be aware of that purpose as it is disclosed in

the government's public acts and statements. To put it

simply, the answer to the question “What was the

government trying to do?” will bear heavily on whether a

display of religious texts or symbols communicates the

government's endorsement of religion.

Petitioners suggest that the governmental purpose

underlying previous versions of the Foundations Display

should be irrelevant to the analysis of the current versions of

the display. Brief for Petitioners at 13-15. In other words,

Petitioners contend that once a government alters a religious

display, or articulates a new purpose for a religious display,

that display should no longer be “tainted” by the

government's previous illegitimate purposes. The Court

must reject Petitioner's argument both because it is illogical,

and because it invites abuse. Whether a previous purpose is

relevant to a subsequent display will depend on the

relationship between the original display and the new

version. In many cases, the original purpose will endure,

just as the meaning of an amended statute may be informed

by the legislative intent behind the statute as originally

enacted. If the altered display appears to advance the

original purpose, that original purpose should still be

considered under the endorsement test.

The alternative invites abuse, because it would allow a

government to remove the “taint” of an improper religious

purpose through the expedient of a minor alteration of the

display accompanied by the articulation of a new, allegedly

12

secular, purpose. If the alteration of the display does not

completely negate the endorsement of religion, the original

purpose of the display remains a factor that a reviewing

court should consider under the endorsement test, because

it will, if known, influence the meaning of the display.

Petitioners ask the Court to abandon entirely the

consideration of governmental purpose in its Establishment

Clause jurisprudence. Because governmental purpose is

highly relevant to whether a display of religious material

communicates endorsement, the Court must not do so.

Il. Under the endorsement test, the “Foundations

Display” in the courthouses violates the

Establishment Clause.

A. The Foundations Display does not have a

genuinely secular purpose.

Certain governmental —_ purposes, such = as

“commemoration,” cannot be evaluated in the abstract

because whether they are truly secular depends on the

object being commemorated. In its amicus brief in Van

Orden, the FFRF identified these as “transitive purposes,”

because they require an object to complete their meaning. A

transitive purpose is not genuinely secular unless both its

object and the means of accomplishing it are secular. The

concept of the transitive purpose can be usefully applied to

the purposes proffered by the Petitioners for the

Foundations Display at issue in this appeal. None of those

purposes is genuinely secular.

The first proffered purpose is “to erect a display

13

containing the Ten Commandments that is constitutional.”

McCreary County, 354 F.3d at 446. Although there is

certainly nothing wrong with a government seeking to

conform its conduct to the Constitution, this purpose is not

genuinely secular. Applying the Lemon test, the Sixth Circuit

properly rejected this purpose as question-begging, because

it “fails to shed any light on [the Petitioners’] motivation for

creating the displays.” Id. at 447. But the Sixth Circuit’s

analysis can be refined under the endorsement test, where

the Petitioner's private motives are not truly at issue. What

matters under the endorsement test is that one who sees the

Foundations Display and asks “what is the government

trying to do?” would not infer that the government had a

secular purpose in “trying to erect a display containing the

Ten Commandments that is constitutional.”

“Erecting a constitutional display of X” is a transitive

purpose whose secularity cannot be evaluated apart from X

itself. If X is religious, so is the stated purpose of displaying

X. Imagine that the Petitioners had offered instead the

purpose of “erecting a constitutional display of an

inherently religious text,” or even “declaring that McCreary

County is a Christian county in a constitutional manner.”

Both of these purposes would be rejected as manifestly

religious. The purpose of “erecting a display containing the

Ten Commandments that is constitutional” is also

transparently religious. To the extent that this purpose is

offered as a public justification of the Foundations Display,

the observer's awareness of that purpose contributes to the

display’s message of governmental endorsement.

The Petitioner’s second purpose is “to demonstrate that

14

the Ten Commandments were part of the foundation of

American Law and Government.” McCreary County, 354

F.3d at 446. The remaining purposes are variations on this

theme, expressing the government's purported intent to

“educate” citizens about the role the Ten Commandments

played as part of the “moral background” to the Declaration

of Independence and our legal tradition.

“Education” is, like “commemoration,” a transitive

purpose. One cannot determine whether the purpose “to

educate citizens about X” is secular apart from determining

whether X is itself genuinely secular. Although it may be an

appropriate government purpose to inform students about

the diversity of religions and non-religious viewpoints, the

government does not have a genuine secular purpose if it

attempts “to educate citizens about the life of Christ and His

path to salvation.” As the Sixth Circuit properly recognized,

the claim that the Ten Commandments is the foundation of

the Declaration of Independence and our legal tradition is

itself a manifestly religious precept. Id. at 454. “Educating”

citizens to this manifestly religious conception of our civic

history is not a genuinely secular purpose.

The manifestly religious notion that the Ten

Commandments are the foundation of the Declaration of

Independence is also demonstrably false. According to the

website of the National Archives, which describes in great

scholarly detail the background, content, and impact of the

Charters of Freedom, the foundation of The Declaration of

Independence is the predominately secular philosophy of

the Enlightenment:

15

Here, in exalted and unforgettable phrases, Jefferson

expressed the convictions in the minds and hearts of

the American people. The political philosophy of the

Declaration was not new; its ideals of individual

liberty had already been expressed by John Locke

and the Continental philosophers.

The National Archives Experience, Charters of Freedom,

Declaration of Independence, available at hittp://

www.archives.gov/national_archives_experience/charters/

declaration.html (last visited Jan. 6, 2005). Consistent with

Locke's philosophy, the Declaration of Independence speaks

of “Governments ... instituted among Men, deriving their

just powers from the consent of the governed,” not a

government ruled by divine authority. References by

Jefferson, a non-Christian, to “Nature’s God” and the

“Creator” are not references to the God of the Bible. Only by

the most convoluted logic can anyone contend that the Ten

Commandments inspired Jefferson’s call to revolution

against the king of England.

The Sixth Circuit based its decision on a careful analysis

of the specific assertions and historical material presented in

the Foundations Display. McCreary County, 354 F.3d at 451-

54. The Sixth Circuit concluded that it would be

constitutionally permissible to integrate the Ten

Commandments into an “objective historical display,” but

the government could not “go out of its way to stress the

proposition that the Ten Conumandments formed the

foundation of the Declaration of Independence while utterly

ignoring (and implicitly denying) all other influences.” Id. at

453. Obviously, bad scholarship by the government is not a

16

constitutional violation in and of itself. But when a

government purports to justify the display of religious

material as “education,” the content of that education is not

beyond constitutional scrutiny. In Stone v. Graham, 449

U.S. 39 (1980), this Court acknowledged that the Ten

Commandments can be presented by government as

playing a role in our civic life, such as when it is “integrated

into the school curriculum ... in an appropriate study of

history, civilization, ethics, comparative religion, or the

like.” 449 U.S. at 42 (citing Abington School Dist., 374 U.S.

at 225). No reasonable person infers from the inclusion of

religion in a properly objective school curriculum that the

government intends to endorse religion. But when the

purported “education” does not bear the hallmarks of

scholarly integrity and objectivity, and instead distorts

history to valorize a religious text, the intent to endorse

religion is self-evident.

The dissent in McCreary County, 354 F.3d at 468 (Ryan, J.,

dissenting), and several amici® contend that the Foundations

Display is justified as an acknowledgment of the substantial

influence of religion on American history. But this misses

the point: to commemorate or celebrate the influence of a

specific highly religious text on our nation’s history

communicates the government's intent to endorse that

religious text. In the early days of the Republic certain

religious principles in the Ten Commandments were

reflected in the laws of the states. But a contemporary

® See briefs cited in note 3, supra.

17

government cannot rummage through our nation’s past,

choosing to celebrate antiquated religious laws that would

now be unconstitutional. Such celebration unmistakably

demonstrates the government's intent to communicate its

endorsement of religion.

B. The Foundations Display communicates the

government's endorsement of religion.

The second question under the endorsement test is

whether, regardless of intent, “a government practice [has]

the effect of communicating a message of government

endorsement or disapproval of religion.” Lynch, 465 U.S. at

692 (O'Connor, J., concurring).? The Foundations Display

plainly has the effect of communicating religious

endorsement.

1. The text of the Ten Commandments

is inherently religious and highly

sectarian.

The text of the Ten Commandments is inherently

religious, as this Court recognized in Stone, 449 U.S. at 41-42.

Remarkably, the Petitioners and several amici contend that

’ This articulation is a refinement of the second prong of the Lemon test,

which asked whether the government practice had the principal or

primary effect of advancing or inhibiting religion. Lemon, 403 U.S. at 612.

As interpreted by Justice O’Connor in Lynch, the effect test does not

require the invalidation of a government act that has the effect of

.vancing religious interests, so long as the act does not communicate the

.overnment’s own endorsement of religion. 465 U.S. at 691-92.

18

the Ten Commandments are non-sectarian—or even

essentially secular. Brief of Petitioners at 45. But the

intensely sectarian nature of the Ten Commandments is

carefully demonstrated in the Brief of Amici Curiae Anti-

Defamation League, et al. (filed Dec. 13, 2004 in Nos. 03-1500

and 03-1693) and the Brief for the Hindu American

Foundation, et al. (filed Dec. 13,2004 in No. 03-1500). These

briefs make clear that the God of the Ten Commandments is

not the non-sectarian Creator referred to in the Declaration

of Independence, but only the Judeo-Christian God of the

Bible, and arguably only the Christian God. Brief of Amici

Curiae Anti-Defamation League, et al. at 22-26

(demonstrating that the displays at issue in Van Orden and

in this case are either homogenized or specifically Christian

versions of the Ten Commandments that are offensive to

many Jews).

In attempting to secularize the Ten Commandments,

Petitioners overlook a crucial distinction between the

religious icons and symbols at issue in Lynch and Allegheny

and the religious text of the Ten Commandments at issue in

Stone. Religious icons and symbols are open to a broader

range of interpretation than religious texts, which

necessarily express specific religious precepts. As explained

in the FFRF’s amicus brief in Van Orden, the figure of Moses

as part of an allegorical display can represent a traditional

symbol of law-giving, Allegheny, 492 U.S. at 651 (Stevens, J.,

concurring in part and dissenting in part), but the text of the

Ten Commandments expressly states “I AM the LORD thy

God; Thou shalt have no other gods before me.” Outside of

an objective scholarly context, the display of this text will

inevitably suggest endorsement.

19

The Petitioners and certain amici suggest that the

display of the text of the Ten Commandments has the same

effect as the display of an image of Moses. For example,

according to the Brief of Amici Curiae The States of Indiana,

Alabama, et al. (Filed Dec. 8, 2004 in No. 03-1500), if this

Court concludes that the Foundations Display is

unconstitutional, then every governmental display or

monument that contains religious symbols or images will be

at risk. This is nonsense. The States of Indiana, Alabama, et

al. have reduced the endorsement test to a simplistic

absurdity in an effort to advocate a bright-line rule that

permits the display of virtually any religious material. This

Court, and reviewing courts throughout the nation, are

capable of distinguishing between a display of an intensely

sectarian text that plainly endorses religion, such as that in

Stone, and a monumental sculpture that celebrates historical

law-givers, such the one on the East Pediment of the

Supreme Court building. Under the endorsement test, this

Court can declare the Foundations Display of the Ten

Commandments unconstitutional without placing the

artwork of the Supreme Court building at any risk.

2. The Foundations Display does not

negate the message of religious

endorsement that attends the display

of the text of the Ten

Commandments.

The Petitioners contend that the Foundations Display,

viewed as a whole, does not communicate a message of

government endorsement of the Ten Commandments.

Petitioners correctly state that under the effects prong of the

20

endorsement test, the display must be evaluated in context

and from the viewpoint of the reasonable observer. Brief of

Petitioners at 16-17 (citing Allegheny, 492 U.S. at 630

(O’Connor, J., concurring)). For the Petitioners, apparently,

all that matters is that the Ten Commandments is only one

document among eleven on display.

The Foundations Display does not provide a context that

negates the message of governmental endorsement. On the

contrary, that context amplifies the message of endorsement

by asserting that our nation is founded on the specific

religious precepts in the Ten Commandments. As _ the

Seventh Circuit recognized in Books v. City of Elkhart, the

association of secular symbols of civil government with the

Ten Commandments enhances the message of endorsement.

235 F.3d 292, 307 (7th Cir. 2000), cert. denied, 532 U.S. 1058

(2001) (Stevens, J., statement respecting denial of certiorari)

(endorsing reasoning of Seventh Circuit opinion).

The Foundations Display does not merely suggest a link

between the Ten Commandments and civil government by

placing civic symbols near the Ten Commandments. The

introductory document, entitled “The Foundations of

American Law and Government Display,” expressly asserts

that “The Ten Commandments provide the moral

background of the Declaration of Independence and the

foundation of our legal tradition.” McCreary County, 354

F.3d at 443. There could hardly be a clearer message of

governmental endorsement: the aptly named Foundations

Display valorizes the Ten Commandments as the very

foundation of the government itself. This goes well beyond

a constitutionally permissible acknowledgement of the

21

religious sensibilities of the majority; it is a statement that

ours is a Christian nation, devoted to, and divinely guided

by, the God of the Bible. Others are free to worship or not as

they choose, but only those who worship that God alone

will see their religious convictions expressed on the walls of

government buildings.

CONCLUSION

The FFRF requests that the Court expressly adopt the

endorsement test, that it affirm the decision of the Sixth

Circuit in the McCreary County case, and that it reverse the

decision of the Fifth Circuit in the Van Orden case.

Respectfully submitted,

James A. Friedman*

James D. Peterson

LaFollette Godfrey & Kahn

One East Main Street, Suite 500

Madison, WI 53701-2719

(608) 257-3911

*Counsel of Record

Dated: January 7, 2004