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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0005%3A28

## Record

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

## Text

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of the display along with nine historical documents and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numerous other secular historical documents and symbols.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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0005%3A28. Public record. Not legal advice.