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

| Supreme Coun, US

FILED |

(") DEC 8 ~ 2004

OFFICE OF THE CLERK _

No. 03-1693

IN THE

Supreme Court of the United States

McCREARY COUNTY, KENTUCKY, et a/.,

Petitioners,

V.

AMERICAN CIVIL LIBERTIES

UNION OF KENTUCKY, et a/.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF AMICUS CURIAE

IN SUPPORT OF PETITIONERS

JUDICIAL WATCH, INC.

Paul J. Orfanedes *

Meredith L. Cavallo

JUDICIAL WATCH, INC.

501 School Street, S.W., Suite 500

Washington, DC 20024

(202) 646-5172

Counsel for Petitioner

*Denotes Counsel of Record

PUR OT thy Ue

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_ TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE ............. l

2 SUMMARY OF THE ARGUMENT ................ 2

PUPP TTTTTTITTITETTT TT TITTLE Tee 3

I. The Circuit Court’s Erroneous Holding Stems

From A Basic Misconception of the

OEE s cccccccdcucesesccesses 3

A. Everson - The Initial Source of Confusion .. . 3

B. The Text And History of the Establishment

Clause Is A Federalism Clause ............ 5

ies Bhi II. The Lemon Test Has Outlived Its Usefulness

4) yee) And the Court Should Expressly Overrule It. .... 9

A. Lemon's Background ................065 10

B. The Whittling Away of Lemon ............ 11

C. Six of the Current Justices, Including Chief

Justice Rehnquist, Have Expressed Concern

Or Outright Disli.e For the Lemon Test. .... 11

III. Even If the Circuit Court Properly Applied the

Lemon Test, Petitioners’ Actions Do Not

_ Violate the Establishment Clause. ............ 14

A. Petitioners’ Neutral Purpose Was Clearly

B. Petitioners’ Displays Do Not Endorse

SS ee :!!L!t~<‘OSCSS:t~S 16

C. Petitioners’ Displays Do Not Incorporate

Excessive Government Entanglement. ..... 18

D. Respondents Have Not Been Subjected to

Coercion By Petitioners’ Displays. ......... 19

CONCLUGOUN on ccccccvccccssesseseueeeeeennem 21

ili

TABLE OF CITATIONS

Cases Page

Committee For Public Education and Liberty v.

Regan, 444 U.S. 646 (1980) ............... 11, 12, 18

Corporation of the Presiding Bishop of the Church

of Jesus Christ of Latter-Day Saints v. Amos,

EEE 12

County of Allegheny v. ACLU, 492 U.S. 573 (1989) . 12, 16

Edwards v. Aguillard, 482 U.S. 578 (1987) .... 12, 19,21

Elk Grove Unified School District v. Newdow

542 U.S. __, 124 S.Ct. 2301 (2004) ........ 4, 5, 20, 21

Everson v. Board of Educ. of the Township of Ewing,

Ree esisepesccescnccccece 3,4

Hunt v. McNair, 413 U.S. 734 (1975) ..............-. 11

Kansas v. Colorado, 206 U.S. 46 (1907) .............. 3

Lamb's Chapel v. Center Moriches Union Free

School District, 508 U.S. 384 (1993) ......... 9, 12, 19

Larson v. Valente, 456 U.S. 228 (1982) ............. 11

Lee v. Weisman, 505 U.S. 577 (1992) ........... passim

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

iv

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

Marsh v. Chambers, 463 U.S. 783 (1983) ............ 11

McCreary v. ACLU, 354 F .2¢ 438 (6" Cir. 2003) .. passim

Meek v. Pittenger, 421 U.S. 349 (1975) ........... 11, 18

Mueller v. Allen, 463 U.S. 388 (1983) ............ 11,18

Rosenberger v. Rector & Visitors of the Univ. of Va.,

Fe CEE 9.6 eee tks nddwenenekunesineee 11

Santa Fe Independent School District v. Doe,

SP a EE dcenntescsoutansuwees 14, 16,19

South Carolina v. Katzenbach, 383 U.S. 301 (1966) ..... 3

Wallace v. Jaffree, 472 U.S. 38 (1985) .......... passim

Waltz v. Tax Commission, 397 U.S. 664 (1970) ........ 3

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) ....... 5

Zorach v. Clauson, 343 U.S. 306 (1952) .............. 9

Statues, Rules and Regulations 7

eh GEE Sedcdcccduveusncancvaceuaces 6

i Ot On sae aieeaaean 1

Vv

SG ee, SE oeAie dendedecessanuveedeuedencanses l

Secondary Authority Page

1 ANNALS OF CONGRESS (1789) ...............2000- 5

William J. Federer, America’s God and Country

Encyclopedia of Quotations (2000) .................. 8

http://www. freerepublic.com/forum/

EE ere, ae 8

]

BRIEF OF AMICUS CURIAE IN SUPPORT OF

PETITIONERS

Judicial Watch, Inc. respectfully submits this brief amicus

curiae in support of Petitioners McCreary County, Kentucky,

Pulaski County, Kentucky and Harlan County, Kentucky.

Pursuant to Supreme Court Rule 37.3(a), counsel for the

parties have consented to the filing of this amicus brief.’

Letters of consent to the filing of this brief have been filed

with the Clerk of the Court.

INTEREST OF THE AMICUS CURIAE

Judicial Watch, Inc. is a public interest organization

headquartered in Washington, D.C. Founded in 1994,

Judicial Watch, Inc. seeks to promote accountability,

transparency and integrity in the law and ethics and morality

in public life. Since its inception more than ten years ago,

Judicial Watch, Inc. has filed hundreds of lawsuits in state

and federal courts across the nation in pursuit of these goals.

Judicial Watch, Inc. is participating as amicus in this case for

two reasons. First, Judicial Watch, Inc. believes this case is

an important opportunity for the Court to clanfy its

Establishment Clause jurisprudence and the Lemon test.

Second, as a tax-exempt educational organization, Judicial

Watch, Inc. has an interest in supporting efforts by

government officials to educate the public about the

foundation of our laws, which is precisely the goal Petitioners

. Pursuant to Rule 37.6, Judicial Watch, Inc. states that no counsel

for any party authored this brief in whole or in part, and no person or

entity other than the amicus curiae made a monetary contribution to the

preparation or submission of this brief.

2

purportedly sought to achieve in creating the displays at issue

in this lawsuit.

SUMMARY OF THE ARGUMENT

One of the biggest sources of confusion in contemporary

constitutional jurisprudence is the Establishment Clause -

specifically, the proper relationship between the

Establishment Clause and the protection of individual rights.

Does the Establishment Clause directly protect individual

rights in the same way the Free Expression Clause does? Or

does the Establishment Clause protect individual religious

expressions indirectly by prohibiting the creation of a national

religion and prohibiting discrimination among various

religious groups? These questions have become increasingly

difficult to answer due to the confusion in Establishment

Clause precedent. The lack of any consistent Establishment

Clause principles has led to such artificial “tests” as the

Lemon test, which has only increased the confusion

surrounding the application of the Establishment Clause. The

Lemon test was promulgated as the end-all and be-all of

Establishment Clause jurisprudence, but was almost

immediately diminished or ignored by this Court.

Nonetheless, it has become the standard that the lower courts

feel obligated to follow. This case presents the Court with the

opportunity not only to clarify the proper application of the

Establishment Clause, but also to overrule the Lemon test.

However, even if the Court determines that a clarification of

the Establishment Clause is unnecessary and applies the

Lemon test to this case, the Circuit Court clearly erred in

affirming the permanent injunction entered against Petitioners

because none of the displays at issue violate the

Establishment Clause.

3

ARGUMENT

I. The Circuit Court’s Erroneous Holding Stems From

A Basic Misconception of the Establishment Clause.

Constitutional interpretation generally involves dissecting

the actual language and studying the history surrounding the

provision being interpreted. See Waltz v. Tax Commission of

New York, 397 U.S. 664, 681-82 (1970), South Carolina v.

Katzenbach, 383 U.S. 301, 324 (1966), Kansas v. Colorado,

206 U.S. 46, 91 (1907). Only when this information is

lacking should the courts engage in other methods of

interpretation. With regards to the Establishment Clause,

both the language and the history of the clause are readily

available and understandable. The Court should not pass up

this opportunity to clarify this vital constitutional principle

because the current state of Establishment Clause

jurisprudence leaves the lower courts and state and federal

officials in the position of never knowing how to conform

their conduct to the requirements of the Constitution. As a

result, officials may refrain completely from any action —even

to the detriment of individuals’ rights of free expression — for

fear of costly litigation. This is exactly what the Religion

Clauses were meant to prevent.

A. Everson - The Initial Source of Confusion.

The contemporary understanding that the

Establishment Clause protects individual rights through the

Fourteenth Amendment can be traced to dicta in Everson v.

Board of Education of the Township of Ewing, 330 U.S. 1

(1947). In Everson, Justice Black, writing for the majority,

declared:

4

The broad meaning given the [First] Amendment by

these earlier cases has been accepted by this Court in

its decisions concerning an individual’s religious

freedom rendered since the Fourteenth Amendment

was interpreted to make the prohibitions of the First

[Amendment] applicable to state action abridging

religious freedom. There is every reason to give the

same application and broad interpretation to the

‘establishment of religion’ clause.

Id. at 15. And so the misapplication of the Establishment

Clause began.

Justice Black, while assured that there was “every reason”

to give a broad construction to the Establishment Clause, did

not in fact, give any reason. /d. There is no historical

account or legal authority for such a broad interpretation.

Instead, the Court developed a laundry list of do’s and dont’s,

and, combined with a reference to Thomas Jefferson’s often

mis-cited “wall of separation” analogy, created a

constitutional aberration.

Unlike the Free Expression Clause, the Establishment

Clause, as is plainly apparent from the language and history

of the clause, is a federalism clause. Its purpose is not the

direct protection of individual rights, like the Free Expression

Clause. Rather, the Establishment Clause was intended to

“prevent Congress from _ interfering with state

establishments.” E/k Grove Unified School v. Newdow, 542

U.S. _, 124 S.Ct. 2301, 2330 (2004) (Thomas, J.,

concurring). In Newdow, Justice Thomas found that “the

Establishment Clause does not purport to protect individual

rights,” and, incorporating the Establishment Clause into the

5

panoply of individual rights protected by the First

Amendment “prohibit[s] precisely what the Establishment

Clause was intended to protect — state establishment of

religion.” Jd. at 2330-31 (emphasis in original). Justice

Thomas summed it up perfectly in Zelman v. Simmons-

Harris, 536 U.S. 639, 679 (2002) by stating that, “while the

Federal Government may ‘make no law respecting an

establishment of religion,’ the States may pass laws that

include or touch on religious matters so long as these laws do

not impede free exercise rights or any other individual

religious liberty interest.” It is this relationship that is clearly

demonstrated in the “text and history” of the Establishment

Clause itself. See id.

B. The Text And History of the Establishment Clause

Is A Federalism Clause.

According to historical accounts, one of the most

vigorous debates during the ratification of the Constitution

was the debate surrounding the inclusion of a Bill of Rights,

particularly the inclusion of the Religion Clauses. See

Wallace v. Jaffree, 472 U.S. 38, 92-93 (1985) (Rehnquist, J.,

dissenting). The language proposed by Madison to the House

of Represeritatives during this debate was as follows: “The

civil rights of none shall be abridged on account of religious

belief or worship, nor shall any national religion be

established, nor shall the full and equal rights of consciefice

be in any manner, or in any pretext, infringed.” Jd. at 94

(quoting | Annals of Cong. 424, 434 (1789)). This language

was revised several times by a Select Committee to read

simply: “‘[No] religion shall be established by law, nor shall

the equal rights of conscience be infringed.’” Jd. at 95

(quoting 1 Annals of Cong. 729 (1789)). Several

6

representatives expressed concern over this wording and, in

particular, whether it could harm religion in the future. /d. at

95-96.

Madison proposed adding the word “national” as a

modifier to the word “religion.” /d. at 96. He thought the

addition of the word “national” would “point the amendment

directly to the object it was intended to prevent.” /d.

Eventually, Madison withdrew this proposal, and the

language that was ratified is the language that is presently in

the Bill of Rights: “Congress shall make no law respecting the

establishment of religion.” U.S. CONST., amend I. However,

the debates that preceded adoption of this language made

clear that, “the evil to be aimed at, so far as those who spoke

were concerned, appears to have been the establishment of a

national church, and perhaps the preference of one religious

sect over another; but it was definitely not concerned about

whether the Government might aid all religions

evenhandedly.” Wallace, 472 U.S. at 99 (Rehnquist, J.,

dissenting).

Evidence of this purpose can be seen in the role religion

took in our early Government. The first and most telling

example was the enactment of the Northwest Ordinance in

1789. This was a re-enactment of the Northwest Ordinance

of 1787; which stated: “[religion], morality, and knowledge,

being necessary to good government and the happiness of

mankind, schools and the means of education shall forever be

encouraged.” /d. at 100. Because the Northwest Ordinance

was reenacted during the Bill of Rights’ ratification process,

“it seems highly unlikely that the House of Representatives

would simultaneously consider proposed amendments to the

Constitution and enact an important piece of territorial

7

legislation which conflicted with the intent of the proposals.”

Id.

Also in 1789, House representatives proposed that

President George Washington issue a Thanksgiving Day

proclamation. See id. at 100-102; see also Lynch v. Donnelly,

465 U.S. 668, 675, n. 2 (1984). Washington subsequently

proclaimed November 26, 1789 as a day “to be devoted by the

people of these States to the service of that great and glorious

Being who is the beneficient author of all the good that was,

that is, or that will be....”. Wallace, 472 U.S. at 102

(Rehnquist, J., dissenting). Washington’s Proclamation goes

on to declare that the day is set apart to “[offer] our prayers

and supplications to the Great Lord and Ruler of Nations, and

beseech Him to pardon our national and other

transgressions...to promote the knowledge and practice of true

religion and virtue....” Jd.

Washington’s Thanksgiving Day Proclamation, rather

than unusual, became the norm for U.S. presidents. Lynch,

465 U.S. at 675.’ _In addition to issuing proclamations

containing an overtly religious message, U.S. presidents also

have issued Executive Orders and given inaugural addresses

containing religious themes. See Lynch, 465 U.S. at 676; see

also Lee v. Weisman, 505 U.S. 577, 632-35 (1992) (Scalia, J.,

. For example, Presidents John Adams and James Madison also

gave similar Thanksgiving Proclamations. Wallace, 472 U.S. at 103

(Rehnquist, J., dissenting). President Ronald Reagan signed a Joint

Congressional Resolution on October 4, 1983 declaring 1983 the “Year

of the Bible.”/d. at 175.

8

dissenting).’ The Executive branch is not alone in engaging

in religious acts. In addition to the Northwest Ordinance and

Joint Resolution regarding Washington’s Thanksgiving

Proclamation, Congress has issued Acts of Congress and

given congressional aid grants containing religious themes

and opens its congressional sessions with prayer. See Lynch,

465 U.S. at 676, Wallace, 472 U.S. at 401-05 (Rehnquist, J.,

dissenting), Lee, 505 U.S. at 635 (Scalia, J., dissenting).*

Even the Judicial branch has invoked religion routinely. This

Court’s sessions open with the invocation “God save the

United States and this Honorable Court.” See Lee, 505 U.S.

’ Presidents Thomas Jefferson (despite his “wall of separation of

church and state” analogy), James Madison, and George H. Bush all

invoked God in their inaugural addresses. Lee, 505 U.S. at 633-64

(Scalia, J., dissenting). Presidents Abraham Lincoln, Benjamin Harrison,

Andrew Jackson, Woodrow Wilson, William McK inley, Harry S. Truman,

Dwight D. Eisenhower and Gerald Ford all made religious references in

their inaugural addresses. See William J. Federer, America’s God and

Country Encyclopedia of Quotations 227, 236-37, 279, 308, 378, 445,

589, 698 (2000). And our current president, President George W. Bush

imbued his first inaugural address with religious themes. Available at

http://www.freerepublic.com/forum/a3a6a22 1 f3e55.htm.

. For example, in | 787, Congress made a grant of land to the Ohio

Co. A portion of this land was “for the support of religion.” Wallace, 472

U.S. at 104 (Rehnquist, J., dissenting). On October 3, 1863, an Act of

Congress designated an annual National Day of Thanksgiving. See

William J. Federer, America’s God and Country Encyclopedia of

Quotations 172 (2000). The Act of June 7, 1897 granted public money for

the purpose of supporting sectarian Indian education. /d. at 103

(Rehnquist, J., dissenting). Additionally, Congress has issued

proclamations deem ing Christmas and T hanksgiving as National Holidays

in religious terms and permitted federal employees to be released from

work while still being paid with pubic revenues. Lynch, 465 U.S at 676.

Congress has also provided for publically funded chaplains for the Senate

and House and the military. /d. -

9

at 635 (1992) (Scalia, J., dissenting). Additionally, the frieze

of this Court contains a depiction of the foundations of

American law, including an image of Moses carrying the Ten

Commandments. See Lynch, 465 U.S. at 677. In Zorach v.

Clauson, 343 U.S. 306, 684 (1952), the Court held that “we

are a religious people whose institutions presuppose a

Supreme Being.”

These examples, in addition to our national motto, our

currency, and our Pledge of Allegiance, all demonstrate that

there was never meant to be a complete separation of religion

and government. Rather, the Establishment Clause was only

meant to proscribe actions of a national religion or church.

Il. The Lemon Test Has Outlived Its Usefulness And the

Court Should Expressly Overrule It.

Even if the Establishment Clause is a guarantee of

individual rights through the Fourteenth Amendment, the test

announced in Lemon v. Kurtzman, 403 U.S. 602, 612-13

(1971) has outlived its usefulness, and the Court should

officially overrule it. In McCreary v. ACLU, 354 F.3d 438,

445, 463-64 (2003), both the majority and dissenting opinions

discuss this Court’s reservations about the Lemon test.

Nonetheless, both the majority and the dissent felt they were

obligated to follow Lemon until this Court overrules it. Jd.

This is not the first time the Court has been asked to clarify or

overrule Lemon. In both Lee v. Weisman and Lamb’s Chapel

v. Center Moriches Union Free School District, 508 U.S. 384

(1993), the Court opted not to reconsider the Lemon test, or

its practicability. Lee, 505 U.S. at 586-87, Lamb’s Chapel,

508 U.S. at 395, n. 7. Since that time Lemon has become no

10

clearer. In fact, McCreary highlights the difficulties lower

courts have had understanding and applying the test.

A. Lemon’s Background.

The issue before the Court in Lemon was the

constitutionality of two state statutes. The States of

Pennsylvania and Rhode Island had passed very similar

statutes authorizing those states to reimburse costs related to

the teaching of secular subjects by nonpublic school teachers.

Lemon, 403 U.S. at 607-10. The Court, led by Chief Justice

Burger, held that the statutes violated the Establishment

Clause, as “the Constitution decrees that religion must be a

private matter for the individual, the family, and the

institutions of private choice, and that while some

involvement and entanglement are inevitable, lines must be

drawn.” /d. at 625. This historically inaccurate assessment

of the constitutional boundaries of religion and government

became the Lemon test.° The test considers whether the

offending government action (1) has a secular purpose; (2)

does not advance, nor inhibit religion as its primary purpose;

and (3) does not foster excessive government entanglement.

Id. at 612-13. The Lemon test has not, however, provided a

consistent result when applied to Establishment Clause cases.

It has been whittled away and, at times, flatly ignored and

even disparaged.

. In addition to failing to consider the historical context of the

Establishment Clause, the Court placed a heavy emphasis on the perceived

fear of political divisiveness. Lemon, 403 U.S. at 622-23. This

assumption was unfounded and unfairly fatal to the statutes at issue in

Lemon.

11

B. The Whittling Away of Lemon.

Just two years after the Lemon test was established, it

was reduced by the majority in Hunt v. McNair, 413 U.S. 734,

741 (1975) to offering only “helpful signposts.” Two years

following Hunt, the majority referred to the Lemon test as

providing only “guidelines.” Meek v. Pittenger, 421 U.S.

349, 359 (1975). In Larson v. Valente, 456 U.S. 228, 252

(1982), the majority found the application of the Lemon test

“unnecessary.” The following year, the majority held that,

while the Lemon principle was “well-settled,” it was “no more

than a helpful signpost.” Mueller v. Allen, 463 U.S. 388, 394

(1983). In Lynch v. Donnelly, the majority found the Lemon

test “useful,” but “emphasized our unwillingness to be

confined to any single test or criterion in this sensitive area.”

Lynch, 465 U.S. at 679. In Rosenberger v. Rector & Visitors

of the University of Virginia, 515 U.S. 819 (1995), the Court

did not even use the Lemon test in its Establishment Clause

query. Perhaps most telling of Lemon’s incoherent progeny

is Marsh v. Chambers, 463 U.S. 783 (1983). In Marsh, a case

alleging an Establishment Clause violation, the Court, led by

the author of Lemon, Chief Justice Burger, ignored the three-

part Lemon test altogether. In a little more than a decade,

Lemon’s very own author abandoned the Lemon test.

C. Six of the Current Justices, Including Chief Justice

Rehnquist, Have Expressed Concern or Outright

Dislike For the Lemon Test.

As the McCreary dissent points out, six of the current

justices of this Court have expressed concern over, or outright

dislike for, the Lemon test. McCreary, 354 F.3d at 464. In

addition to the concern expressed in Committee For Public

12

Education and Religious Liberty v. Regan, 444 U.S. 646, 671

(1980) (Stevens, J., dissenting), Wallace v. Jaffree, 472 U.S.

at 110 (Rehnquist, J., dissenting), Corporation of the

Presiding Bishop of the Church of Jesus Christ of Latter-Day

Saints v. Amos, 483 U.S. 327, 346 (1987) (O’Conner, J.,

concurring), County of Allegheny v. ACLU, 492 U.S. 573,

655 (1989) (Kennedy, J., concurring in judgment, dissenting

in part) and Lee v. Weisman, 505 U.S. at 644 (Scalia, J.,

dissenting), the Court has expressed similar concerns in other

opinions. As mentioned above, in Lynch, the majority

expressed caution about being confined to any one test.

Lynch, 465 U.S. at 679. — Additionally, in Edwards v.

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

Justice Scalia rethought his “assumed validity of the Lemon

‘purpose’ test” and adopted Chief Justice Rehnquists’s

“pessimistic evaluation” in Wallace, in which the Chief

Justice wrote that Lemon “has no basis in the history of the

amendment it seeks to interpret, [it] is difficult to apply and

yields unprincipled results....”. Aguillard, 482 U.S. at 636

(Scalia, J., dissenting) (quoting Wallace, 472 U.S. at 112

(Rehnquist, J., dissenting)).

In Lamb's Chapel, Justice Thomas joined Justice Scalia’s

dissent equating the Lemon test to a “ghoul in a late-night

horror movie that repeatedly sits up in its grave and shuffles

around, after being repeatedly killed and buried....” Lamb’s

Chapel, 508 U.S. at 398 (Scalia, J., dissenting). Justice Scalia

suggests that “the secret of the Lemon test’s survival...is that

it is so easy to kill. It is there to scare us (and our audience)

when we wish it to so, but we can command it to return to the

tomb at will.” Jd. at 399. The inconsistency in the

application of the test — not only in the results the test has

yielded but also about whether the test should even be used —

13

gives added weight to Justice Scalia’s “ghoul” analogy.

Chief Justice Rehnquist highlighted the absurdity of this

inconsistency in his dissent in Wallace when he wrote:

[A] State may lend to parochial school children

geography textbooks that contain maps of the United

States, but the State may not lend maps of the United

States for use in geography class. A State may lend

textbooks on American colonial history, but it may

not lend a film on George Washington, or a film

projector to show a history class. A State may lend

classroom workbooks, but not lend workbooks in

which parochial school children write, thus rendering

them nonreusable. A State may pay for bus

transportation to religious schools but may not pay for

bus transportation from the parochial school to the

zoo or natural history museum fora field trip. A State

may pay for diagnostic services conducted in the

parochial school but therapeutic services must be

given in a different building; speech and hearing

‘services’ conducted by the State inside the sectarian

school are forbidden, but the State may conduct

speech and hearing diagnostic testing inside the

sectarian school. Exceptional parochi=' school

students may receive counseling, but it must take

place outside the parochial school, such as in a trailer

parked down the street. A State may give cash to a

parochial school to pay for the administration of state-

written tests and state-ordered reporting services.

Religious instruction may not be given in public

school, but the public school may release students

during the day for religion classes elsewhere, and may

14

enforce attendance at those classes with its truancy

laws.

Wallace, 472 U.S. at 110-11 (Rehnquist, J., dissenting)

(citations omitted).

Lastly, in Santa Fe Independent School District v. Doe,

530 U.S. 290, 319 (2000), Justices Scalia and Thomas joined

Chief Justice Rehnquist’s dissent and recounted Lemon's

“checkered career in the decisional law of this Court.” The

dissent points out that, while the Court previously used

Lemon as a guideline, the majority in Santa Fe applied it

strictly, as if there were no question about its appropriateness.

Id.

As can be seen from this cursory recitation of post-Lemon

decisions, the usefulness of the three-part Lemon test provided

in Establishment Clause jurisprudence has been short-lived.

The inconsistency and confusion that has _ resulted

demonstrates why the Court should take this opportunity to

overrule Lemon and give some clarity and consistency to the

lower courts and state and federal officials.

lil. Even If the Circuit Court Properly Applied the

Lemon Test, Petitioners’ Actions Do Not Violate

the Establishment Clause.

Should the Court decide against overruling the Lemon

test, it nonetheless is clear that Petitioners’ displays are

constitutional and the Circuit Court erred in affirming the

permanent injunction against them.

15

A. Petitioners’ Neutral Purpose Was Clearly Stated.

Lemon’s first prong examines the purpose of the

legislation or governmental action at issue. Lynch, 465 U.S.

at 680. That purpose must be secular, but the legislation or

government action will be invalidated “only when [the Court]

has concluded there was no question that the statute or

activity was motivated wholly by religious considerations.”

Id. (emphasis added). Therefore, the Court should find a

violation of the first prong of the Lemon test only if

Petitioners’ displays were wholly motivated by religious

considerations.

Petitioners have made their intent in creating the displays

very clear. They articulated five purposes:

(1) to erect a display containing the Ten

Commandments that is constitutional; (2) to

demonstrate that the Ten Commandments were part of

the foundation of American Law and Government; (3)

[to include the Ten Commandments] as part of the

display for their significance in providing ‘the moral

background of the Declaration of Independence and

foundation of our legal tradition’; (4) to educate the

citizens of the county regarding some of the

documents that played a significant role in the

foundation of our system of law and government; and

(5) [as stated by the Harlan County School Board] to

create a limited public forum on designated walls

within the school district for the purpose of posting

historical documents.

16

McCreary, 354 F.3d at 446. Nothing about these five

purposes suggests the Petitioners were “wholly motivated by

religious considerations” in erecting the displays. Historical

accounts of the foundations of our laws and government are

quite common, and including the Ten Commandments in such

accounts is simply being historically accurate. Only if the

Court determines that a stated purpose is a sham should the

Court disregard it. Santa Fe, 530 U.S. at 308. However,

there is no evidence in this case suggesting that Petitioners’

stated purposes are not sincere. In Wallace, this Court warned

against psychoanalyzing legislators and attempting to ascribe

“improper motives.” Wallace, 472 U.S. at 74. As such, the

Petitioners’ stated purposes should be accepted as sincere and

taken at face value — they desired to erect displays containing

the Ten Commandments as a part of broader displays about

the foundations of our laws and government.

B. Petitioners’ Displays Do Not Endorse Religion.

The second prong of the Lemon test examines whether

the primary effect of the legislation or government action is

to endorse or inhibit religion. Lemon, 403 U.S. at 612. This

has also been called the “endorsement test.” The primary

inquiry is whether, to an objective observer, the legislation or

government action could be seen as endorsing religion. See

Santa Fe, 530 U.S. at 308. This part of the inquiry looks at

the both the specific content of the display and the context of

the presentation. See Allegheny, 492 U.S. at 598.

In this case, the content and context of Petitioners’

displays clearly demonstrated that no objective observer could

view the displays as governmental endorsements of religion.

The school’s display contained the following: a copy of the

17

Ten Commandments, the Star Bangled Banner, the

Declaration of Independence, the Mayflower Compact, the

Bill of Rights, the Magna Carta, the National Motto, and the

Preamble to the Kentucky Constitution. McCreary, 354 F.3d

at 449. The display also included a School Board Resolution

which explained the significance of these items and included

a provision allowing for other historical materials to be added

to the display at the request of any person. /d. at 444. The

courthouse displays contained all of the documents included

in the school’s display, with the exception of the explanation,

and also contained a depiction of Lady Justice and a one-page

document entitled “The Foundations of American Law and

Government Display,” which briefly explained the role of the

Ten Commandments in the formation of Western legal

thought. /d. at 443. All of the items were the same size, and

the displays placed no undue emphasis on any one document.

Id. at 454.

The Circuit Court erred by assigning too much attention

to the Ten Commandments instead of the display as a whole.

As stated in Lynch, the inquiry is for the display as a whole.

See Lynch, 465 U.S. at 680. Here, the Ten Commandments

are only one document in a display that consisted of at least

nine separate items. The Ten Commandments are not

displayed in a larger-than-life manner, or at a focal point, or

with any special identifying markers. Rather, the Ten

Commandments are merely one part of an overall unifying

theme: the foundations of American law and government.

This theme is readily apparent to the objective observer.

Despite the Circuit Court’s claim to the contrary, there is no

lack of “any analytical connection” between the Ten

Commandments and the other documents. McCreary, 354

F.3d at 460. It is in the nature of all displays that the amount

18

of information that can be presented to a visitor, student or

casual observer must be limited.

Petitioners’ displays, including the Ten Commandments,

are located in two courthouses and a school — places where

our laws are either enforced or studied. Much like the Court’s

analysis in Lynch of a creche in a Christmas display located

in a city park during the Christmas season, Petitioners’

displays are logically located, contain a number of diverse

elements, and demonstrate the historical development of the

law. See Lynch, 465 U.S. at 679-80.

C. Petitioners’ Displays Do Not Incorporate Excessive

Government Entanglement.

Neither the district court nor the Circuit Court

discussed the entanglement prong of the Lemon test because

they concluded that Petitioners’ displays violated the first two

prongs. McCreary, 354 F.3d at 461, n. 11. However, in order

to complete the Lemon inquiry, the third prong will be

addressed briefly. The third prong examines whether the

statute or government action will foster excessive government

entanglement with religion. Lemon, 403 U.S. at 613. In

Lemon, the Court stated that in order to determine whether

entanglement was excessive, “we must examine the character

and purposes of the institutions that are benefitted, the nature

of the aid that the State provides, and the resulting

relationship between the government and the religious

authority.” /d. at615. Examining these factors, it is clear that

no excessive entanglement exists in Petitioners’ displays. No

particular institutions are benefitting from the displays, no aid

is being given by the state, and the displays result in no

19

relationship between the state and any religious authority.°

Thus the displays pass the third prong of the Lemon test as

well.

D. Respondents Have Not Been Subjected to Coercion

By Petitioners’ Displays.

Although not a part of the original Lemon test, the

Court has occasionally considered “coercion” an element of

its Establishment Clause jurisprudence. See Aguillard, 482

U.S at 583-84, Lee, 505 U.S. at 595, Santa Fe, 530 U.S. at

302-04. The Circuit Court considered whether the displays

had any coercive effect on viewers in the context of its

endorsement analysis. McCreary, 354 F.3d at 460-61.

Pulling a page from the Court’s decision in Aguillard, the

Circuit Court in McCreary held that students, whose

attendance at school is required, and individuals who are

required to be present at the courthouses for things “ranging

from compulsory jury service to bench warrant decrees,”

would be subject to coercive pressure by Petitioners’ displays.

Id. This is another example of how Establishment Clause

jurisprudence has worked an unconstitutional injustice.

In addition to there being no historical context for the use

of a “coercion” test under these circumstances, there simply

is no coercion in this case. The Court’s use of coercion in Lee

. The entanglement factors apply more precisely to cases involving

public funds aiding nonpublic schools, agencies or organizations. See

Meek v. Pittenger, 421 U.S. 349 (1975), Committee For Public Education

and Religion. v. Regan, 444 U.S. 646 (1980), Mueller v. Allen, 463 U.S.

388 (1983) and Lamb's Chape! v. Center Moriches Union Free School

District, 508 U.S. 384 (1993). This is yet another example of the

difficulties of applying the Lemon test in a variety of circumstances.

20

and Santa Fe is based on a misapplication of the word itself.

As Justice Scalia pointed out in his dissent:

[C]oercion that was a hallmark of historical

establishments of religion was coercion of religious

orthodoxy and of financial support by force and threat

of penalty. Typically, attendance at the state church

was required; only clergy of the official church could

lawfully perform sacraments; and dissenters, if

tolerated, faced an array of civil disabilities.

Lee, 505 U.S. at 640-41 (Scalia, J., dissenting).

In Elk Grove, Justice Thomas concurred with Justice

Scalia’s assessment of Lee and the Court’s misapplication of

“coercion.” Elk Grove, 124 S.Ct. at 2330. The daily pledge

of allegiance given in the Elk Grove elementary schools did

not require participation by the students. /d. at 2306. In fact,

the school district expressly permitted those students who

objected on religious grounds to abstain from reciting the

pledge. /d. The plaintiff filed suit against the school district

claiming that the pledge, containing the words “under God,”

was a violation of the Establishment Clause. /d. Although

the Court’s opinion rested on principles of standing, Justices

O’Conner and Thomas both addressed the coercion test. Jd.

at 2326-27 (O’Conner, J., concurring), 2328-29 (Thomas, J.,

concurring). Neither found that the students were being

coerced. /d. The pledge did not result in any student who

opted to abstain from recitation to face any penalties. There

was no forced proclamation of allegiance to a religion, faith

or © »d. No one was forced to stand or salute. No one was

forced to wear a scarlet letter “H” for heathen. In fact,

participation in the pledge was completely free from coercion,

i aaah

2

21

both in the constitutional sense and the everyday use of the

word. Justice O’Conner points out, “the Constitution does

not guarantee citizens a right entirely to avoid ideas with

which they disagree. It would betray its own principles it if

did; no robust democracy insulates its citizens from views that

they might find novel or even inflammatory.” Elk Grove, 124

S. Ct. at 2327 (O’Conner, concurring).

The alleged coercion in this case is even more chimerical.

Unlike the students in Lee and Santa Fe, who were assembled

at official school events where prayer was offered, the

students’ only exposure to the school’s display is by way of

walking past it. Exposure to Petitioner’s display in general,

or the Ten Commandments in particular, can be avoided by

simply not looking at the display. The same can be said about

the courthouse displays. First, it is important to note that the

Court has never considered the occupants of a courthouse to

be of a special nature, or especially impressionable. See e.g.

Aguillard, 482 U.S. at 583-84. Therefore, for the Circuit

Court to have utilized the same coercion standard for the

courthouse displays as it did for the school’s display is

incorrect. Second, as with the school display, no one, even

those who are required to be at the courthouse, is required to

stop and look at the display. The display can be avoided by

not looking at it or simply ignoring it.

CONCLUSION

For the foregoing reasons, Judicial Watch, Inc.

respectfully urges the Court to clarify its analysis of the

Establishment Clause, overturn the Lemon test, and reverse

the Circuit Court’s injunction against Petitioners so as to

permit their displays.

22

Respectfully submitted,

Paul J. Orfanedes *

Meredith L. Cavallo

JUDICIAL WATCH, INC.

501 School Street, S.W.

Suite 500

December 2004 Washington, DC 20024

(202) 646-5172

Counsel for Petitioner

*Denotes Counsel of Record