# 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%3A29

## Record

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

## Text

| 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
; ha

_ 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,

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2

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0005%3A29. Public record. Not legal advice.