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

Supreme Court. US.

FILED

Vy) |

Cy | DEC 8- 2004

No. 03-1693 |_ OFFICE OF THE CLERK

jn The

Supreme Court of the United States

¢

McCREARY COUNTY, KENTUCKY, et al.,

Petitioners,

V.

AMERICAN CIVIL LIBERTIES

UNION OF KENTUCKY, et al.,

Respondents.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

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BRIEF OF THE STATES OF MINNESOTA,

MISSOURI, ILLINOIS, IOWA, NEW MEXICO,

OKLAHOMA, AND WISCONSIN AMICI CURIAE IN

SUPPORT OF PETITIONERS

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MIKE HATCH

Attorney General

State of Minnesota

Counsel of Record

JOHN S. GARRY

Assistant Attorney General

445 Minnesota Street

Suite 1100

St. Paul, Minnesota 55101-2128

(651) 282-5700

Attorneys for Amici Curiae States

[Additional Counsel Listed On Inside Cover]

——

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

JEREMIAH W. (JAY) NIXON

Attorney General

State of Missouri

LISA MADIGAN

Attorney General

State of Illinois

THOMAS J. MILLER

Attorney General

State of Iowa

PATRICIA A. MADRID

Attorney General

State of New Mexico

W.A. DREW EDMONDSON

Attorney General

State of Oklahoma

PEGGY A. LAUTENSCHLAGER

Attorney General

State of Wisconsin

TABLE OF CONTENTS

Page

SE TE Ce ciiciicciccntssntsdcasescscecsenmennsenccouces i

po ii

INTEREST OF THE AMICI CURIAE STATEG.......... 1

SUMMARY OF ARGUMENT ........0............cccseeceeeeeeees 1

EES eee 2

I. A Depiction Of The Ten Commandments In A

Courthouse Setting In Conjunction With

Other Historical Symbols Of The Legal Sys-

tem Does Not Violate The Establishment

Clause Under The Lemon Test ....................... 2

A. A Courthouse Display Of Historical Le-

gal Symbols That Includes The Ten Com-

mandments Does Not Lack A Secular

B. The Primary Effect Of Such A Display

Neither Advances Nor Inhibits Religion

Because A Reasonable Observer Would

Not Perceive The Display As An En-

dorsement Of Religion ......................cc.008: 7

©. A Courthouse Display That Includes The

Ten Commandments Does Not Foster

Excessive Governmental Entanglement

I iscinniciiinenennnnuninensinemenesinieians 9

D. Affirming The Court Of Appeals Would

Cast Doubt On The Constitutionality Of

Longstanding Displays That Include De-

pictions Of The Ten Commandments At

State And Federal Courthouses ............... 10

TE otisrienntnanncnnscansensunesentinhenssieunidimiesincensesetins 12

ii

TABLE OF AUTHORITIES

Page

CASES

ACLU v. McCreary ©>unty,

354 F.3d 438 (Gt Cir. 2003) ...................ceccceeeees 5, 7, 9, 10

County of Allegheny v. ACLU, 492 U.S. 573 (1989) ...6, 7, 8, 11

Edwards v. Aguillard, 482 U.S. 578 (1987)...............:::00000+ 6

Lamb’s Chapel v. Center Moriches Union Free Sch.

Baad, GD UE. BIB Co cccseseseiensncsncrsecssnessvnsevesssnsansiones 4

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

Lynch v. Donnelly, 465 U.S. 668 (1984)..................00+ passim

Santa Fe Indep. Sch. Dist. v. Doe,

TL, Be ED ccrctcisnicicinrininencnansnmsanssnsetimmereimaiiints 4,5

Stone v. Graham, 449 U.S. 39 (1980)..............cccceeeeeeeeeees 5, 6

Walz v. Tax Comm’n, 397 U.S. 664 (1970) ............ cece cee eee eee 9

CONSTITUTIONAL PROVISIONS

United States Constitution, Establishment Clause .....passim

ed

1

INTEREST OF THE AMICI CURIAE STATES

This case concerns the constitutionality under the

Establishment Clause of a depiction of the Ten Com-

mandments at a courthouse as part of a display of other

historical documents that symbolize the development of

law. The State of Minnesota has an interest in the resolu-

tion of this issue because the courtroom of the Minnesota

Supreme Court in the Minnesota State Capitol includes a

depiction of the Ten Commandments in a group of murals

that symbolize concepts of the legal system. The State of

Missouri has an interest because there are courthouses in

Missouri displaying similar symbols. The States of Illinois,

Iowa, New Mexico, Oklahoma, and Wisconsin have a like

interest. Affirming the decision of the Sixth Circuit Court

of Appeals could call into question the constitutionality of

Minnesota’s display of courtroom murals, and similar

displays in Missouri, as it could for other such displays

that include depictions of the Ten Commandments at

numerous courthouses across the country.

¢

SUMMARY OF ARGUMENT

A depiction of the Ten Commandments in a court-

house setting does not violate the Establishment Clause

when it is part of a display of other historical symbols of

the legal system. Such a display does not violate the

Establishment Clause because it satisfies each of the three

prongs of the prevailing test set forth in Lemon v. Kurtz-

man, 403 U.S. 602, 612-13 (1971). There is a secular

purpose for such a display; a reasonable observer would

not understand such a display to be a government en-

dorsement of the religious aspect of the Ten Command-

ments; and such a display does not foster excessive

2

governmental entanglement with religion. The contrary

decision of the Sixth Circuit rests on a misapplication of

this Court’s precedents under the Lemon test. The Court

should reject the Sixth Circuit’s faulty reasoning and

remove the doubt it creates for the continuation of displays

such as that in the courtroom of the Minnesota Supreme

Court.

e

ARGUMENT

IL A Depiction Of The Ten Commandments In A

Courthouse Setting In Conjunction With

Other Historical Symbols Of The Legal Sys-

tem Does Not Violate The Establishment

Clause Under The Lemon Test.

This case requires the Court to determine whether

including a depiction of the Ten Commandments in a

courthouse display of historical symbols of law violates the

Establishment Clause. Like many other courthouses

throughout the country, the courtroom of the Minnesota

Supreme Court in the Minnesota State Capitol building

includes a depiction of the Ten Commandments. The

building, designed by architect Cass Gilbert who also

designed the United States Supreme Court building, was

opened to the public in 1905. Minnesota State Capitol,

Self-guided Tour, produced by Minnesota Historical Society,

available at Attp://www.mnhs.org/statecapitol. On the walls

of the courtroom of the Minnesota Supreme Court, located

in the east wing of the second floor, are large mural

paintings by John LaFarge that “symbolize concepts of the

legal system.” Jd. The paintings are described as follows by

the Court Information Office of the Minnesota Supreme

Court:

3

Toward the ceiling of the chambers are four

paintings by artist John LaFarge, each one sym-

bolizing a concept of the legal system. Above the

justices’ bench is pictured Moses receiving the

law of the Ten Commandments. It is called “The

Moral and the Divine Law.” The painting to the

left is called “The Recording of Precedents” and

shows the Chinese philosopher Confucius and his

documenting of canons and charges in the course

of Chinese history. The Greek philosopher Socra-

tes can be seen above the entrance as he uses his

Socratic method of questioning to elicit answers

from his pupils, the same technique often used

by the justices in asking questions of the attor-

neys before them. The painting is called “The Re-

lation of the Individual to the State.” The

painting on the right side is called “The Adjust-

ment of Conflicting Interests,” and shows medie-

val lords meeting with church representatives in

an attempt to resolve their differences peacefully,

a function that later became the role of the

courts.

Minnesota Supreme Court, at pp. 12-13, produced by Court

Information Office, available at Attp://www.courts.state.

mn.us/page/?pageID=149.

Courthouses in Missouri display similar symbols. For

example, the lobby of the courthouse for the Missouri

Court of Appeals, Western District, in Kansas City, built in

1982, contains a large ornamental frieze. One element is

an image of stone tablets without any writing. Similar

unmarked tablets appear on the other side of the state,

above the exterior doors of the Civil Courts Building for

the City of St. Louis. The building, constructed in 1930,

also has unmarked tablets above the doors to two court-

rooms on each floor, and tablets in the lobby that are

4

marked with Roman numerals I through X — an obvious

reference to the Ten Commandments. Elsewhere in the

building are other images, such as the roof decoration: two

12-foot-high griffins, with human faces that symbolize

human mercy tempering justice.

The governing test under the Establishment Clause

for the constitutionality of such displays, like the LaFarge

courtroom murals at the Minnesota State Capitol, remains

the three-part test set forth in Lemon v. Kurtzman, 403

U.S. 602, 612-13 (1971). The test has not been abandoned.

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

(applying Lemon test); see also Lamb’s Chapel v. Center

Moriches Union Free Sch. Dist., 508 U.S. 384, 395 n.7

(1993) (noting that Lemon has not been overruled).

Under the Lemon test, a challenged governmental

action violates the Establishment Clause if: (1) it lacks a

secular purpose; (2) its primary effect either advances or

inhibits religion; or (3) it fosters excessive governmental

entanglement with religion. Lemon, 403 U.S. at 612-13.

The decision of the Sixth Circuit Court of Appeals in

this case employs reasoning that misapplies this Court’s

decisions under the Lemon test. A courthouse display that

includes a depiction of the Ten Commandments with other

historical symbols of law does not violate the Establish-

ment Clause under a proper application of the Lemon test.

Thus, to decide this case, the Court need not overrule its

precedents or formulate a new Establishment Clause test

that provides for a different or less exacting review.

5

A. A Courthouse Display Of Historical Legal

Symbols That Includes The Ten Com-

mandments Does Not Lack A Secular Pur-

pose.

The court of appeals erred in holding that a court-

house display that includes the Ten Commandments fails

the first prong of the Lemon test if the display lacks

information demonstrating an “analytical or historical

connection” between the Ten Commandments and the

other legal documents or symbols of law in the display.

ACLU v. McCreary County, 354 F.3d 438, 451 (6th Cir.

2003). This holding misapplies the Court’s precedents and,

in so doing, wrongly casts doubt on the constitutionality of

the many other courthouse displays that include the Ten

Commandments, such as the LaFarge murals in the

courtroom at the Minnesota State Capitol building.

The first prong of the Lemon test sets a fairly low

hurdle. See Lynch v. Donnelly, 465 U.S. 668, 680-81 (1984).

It requires only that at least one secular purpose exist for

the challenged governmental action. See id. at 681 & n.6.

The Court accords deference to the government’s asserted

secular purpose and, accordingly, will find that the chal-

lenged governmental action fails the Lemon test’s first

prong only if the asserted secular purpose is a sham. See

Santa Fe, 530 U.S. at 308-09, 314-17; see also Lynch, 465

U.S. at 680 (stating that, under the Lemon test, the Court

concludes that governmental action has no secular pur-

pose only when there is no question that the action “was

motivated wholly by religious considerations”).

For its holding that the challenged display lacks a

secular purpose, the court of appeals relied heavily on the

inapposite case of Stone v. Graham, 449 U.S. 39 (1980)

(per curiam). That decision is inapplicable here because it

6

struck down a state statute that required the Ten Com-

mandments to be posted, by itself, on the wall of every

public school classroom. Jd. Posting the Ten Command-

ments by itself on classroom walls could be understood

only as having the purely religious purpose of seeking “to

induce the schoolchildren to read, meditate upon, perhaps

to venerate and obey, the Commandments.” Jd. at 42; see

also Lynch, 465 U.S. at 679 (stating that the Court invali-

dated the challenged statute in Stone because the Com-

mandments were posted in a school setting “purely as a

religious admonition”). This is far different than a display

that includes many historical legal symbols, not just the

Ten Commandments, and that is presented at a court-

house, rather than in a school setting where Establish-

ment Clause concerns are much stronger. “Indeed, the

Court acknowledged in Stone that its decision forbidding

the posting of the Ten Commandments did not mean that

no use could ever be made of the Ten Commandments, or

that the Ten Commandments played an exclusively reli-

gious role in the history of Western Civilization.” Edwards

v. Aguillard, 482 U.S. 578, 593-94 (1987); see also id. at

583-84 (stating that “(t]he Court has been particularly

vigilant monitoring compliance with the Establishment

Clause in elementary and secondary schools” because

“[s]tudents in such institutions are impressionable and

their attendance is involuntary”).

The relevant cases are Lynch and County of Allegheny

v. ACLU, 492 U.S. 573 (1989), in which the Court applied

the Lemon test to displays that were on public space

outside the school setting and included purely secular

symbols with a religious symbol. In these cases, the Court

rejected Establishment Clause challenges to the inclusion of

a religious symbol as part of the broader display, without

7

any requirement that the display present an explanation

demonstrating the connection that the religious symbol

had with the other symbols. See Lynch, 465 U.S. 668

(créche); Allegheny, 492 U.S. 573 (menorah). Thus, con-

trary to the court of appeals’ decision, a courthouse display

of historical legal symbols that includes a depiction of the

Ten Commandments does not fail the first prong of the

Lemon test if it lacks an explanation of the “analytical or

historical connection” between this religious symbol of law

and the secular symbols of law.

B. The Primary Effect Of Such A Display

Neither Advances Nor Inhibits Religion

Because A Reasonable Observer Would

Not Perceive The Display As An Endorse-

ment of Religion.

Because of the low hurdle presented by the first prong

of the Lemon test, the determinative question is whether

the challenged display fails under the second part of the

test, the “effect” prong. Only one of the judges in the

majority of the court of appeals panel addressed this part

of the test. See McCreary, 354 F.3d at 462 (Gibbons, J.,

concurring) (expressing no opinion on whether the chal-

lenged display violates second prong of Lemon test). The

opinion of Judge Clay on this issue erred in concluding

that the challenge‘ display fails the effect prong because it

does not demonstrate an “analytical connection” between

the Ten Commandments and the other documents in the

display. Id. at 460. As is clear from the Court’s decisions

addressing displays on public property, the Lemon test’s

second prong does not require that such a courthouse

display present an “analytical connection” in order to pass

constitutional muster.

8

In the context of displays of religious symbols on

public property, the Court has refined the second prong of

the Lemon test by clarifying that this “effect” prong is

violated only if the display constitutes an endorsement of

religion. See Allegheny, 492 U.S. at 592-97; Lynch, 465

U.S. at 687, 691-94 (O’Connor, J., concurring). The display

is an endorsement of religion only if it would be perceived

as such by a reasonable observer. See id. Under this

objective standard, a reasonable observer is one who is

already familiar with the history and context of the

display, without that information being presented as part

of the display itself. See id.; see also Allegheny, 492 U.S. at

630 (O’Connor, J., concurring in part and concurring in

judgment) (stating that “the ‘history and ubiquity’ of a

practice is relevant because it provides part of the context

in which a reasonable observer evaluates whether a

challenged governmental practice conveys a message of

endorsement of religion”). Thus, contrary to the approach

taken by Judge Clay, the second prong of the Lemon test

does not require that a challenged display provide the

explanatory “analytical connection” envisioned by his

opinion.

A reasonable observer with an understanding of

history and context would not perceive a courthouse

display of historical legal symbols that includes the Ten

Commandments to be a government endorsement of

religion in general or a government endorsement of the

religious meaning of the Ten Commandments for the

Jewish and Christian faiths. This is confirmed by the

continuous display of the LaFarge murals in the court-

room of the Minnesota Supreme Court since 1905 without

any Establishment Clause challenge. It is likewise con-

firmed by this Court’s express approval of the inclusion of

9

a depiction of Moses and the Ten Commandments on a

frieze in its courtroom. See Lynch, 465 U.S. at 677 (“The

very chamber in which oral arguments on this case were

heard is decorated with a notable and permanent — not

seasonal — symbol of religion: Moses with Ten Command-

ments.”).

C. A Courthouse Display That Includes The

Ten Commandments Does Not Foster Ex-

cessive Governmental Entanglement With

Religion.

The district court and the court of appeals did not

address whether the challenged display violates the third

prong of the Lemon test. McCreary, 354 F.3d at 461 n.11.

There is no plausible argument that such a display fails

the third prong of the Lemon test.

A courthouse display of historical legal symbols that

includes the Ten Commandments simply does not give rise

to the excessive governmental entanglement with religion

proscribed under the Lemon test. Erecting and maintain-

ing such a display does not involve the expenditure of

public funds to support a religious organization. Nor does

it otherwise involve the government with a religious

program or authority. See Lemon, 403 U.S. at 612 (stating

that “the three main evils against which the Establish-

ment Clause was intended to afford protection [are]

‘sponsorship, financial support, and active involvement of

the sovereign in religious activity”) (quoting Walz v. Tax

Comm’n, 397 U.S. 664, 668 (1970)).

10

D. Affirming The Court Of Appeals Would

Cast Doubt On The Constitutionality Of

Longstanding Displays That Include De-

pictions Of The Ten Commandments At

State And Federal Courthouses.

Given its faulty reasoning, affirming the court of

appeals would place in doubt the constitutionality of other

courthouse displays that include the Ten Commandments

and have stood for decades without being challenged, such

as the LaFarge murals in the courtroom of the Minnesota

Supreme Court. As the dissent correctly noted:

It is uncontested that depictions of the Ten

Commandments and Moses appear in secular

context in, among other places, the United States

House chamber, the entrance to the national ar-

chives, and in three separate locations in the

United States Supreme Court, as well as numer-

ous courtrooms and legal settings across the

country.

McCreary, 354 F.3d at 481-82 (Ryan, J., dissenting). Under

the court of appeals’ erroneous reasoning, such longstand-

ing displays in Minnesota and elsewhere would be at risk

of a challenge that they lack a secular purpose or consti-

tute an endorsement of religion on the ground that the

display does not present sufficient information demon-

strating an analytical or historical connection between the

depiction of the Ten Commandments and the other sym-

bols in the display.

The Lemon test, when properly applied, does not

expose such longstanding courthouse displays, like the

LaFarge murals in the Minnesota State Capitol building,

to a viable Establishment Clause challenge. As Justice

11

Stevens aptly stated in discussing the frieze on the south

— wall of the courtroom of the United States Supreme Court:

[A] carving of Moses holding the Ten Command-

ments, if that is the only adornment on a court-

room wall, conveys an equivocal message,

perhaps of respect for Judaism, for religion in

general, or for law. The addition of carvings de-

picting Confucius and Mohammed may honor re-

ligion, or particular religions, to an extent that

the First Amendment does not tolerate any more

than it does “the permanent erection of a large

Latin cross on the roof of city hall.” Placement of

secular figures such as Caesar Augustus, William

Blackstone, Napoleon Bonaparte, and John Mar-

shall alongside these three religious leaders,

however, signals respect not for great proselytiz-

ers but for great lawgivers. It would be absurd to

exclude such a fitting message from a courtroom,

as it would to exclude religious paintings by Ital-

ian Renaissance masters from a public museum.

Allegheny, 492 U.S. at 652-53 (Stevens, J., concurring in

part and dissenting in part) (citations and footnote omit-

ted).

Thus, the Court should reject the court of appeals’

reasoning and confirm that the Establishment Clause, as

articulated in the Lemon test and the Court’s decisions

applying that test, does not require depictions of the Ten

Commandments to be excised from courthouse displays of

historical symbols of law.

12

CONCLUSION

The Court should conclude that, under the existing

Lemon test, a depiction of the Ten Commandments in a

courthouse setting does not violate the Establishment

Clause when displayed in conjunction with other historical

symbols of the legal system.

Respectfully submitted,

MIKE HATCH

Attorney General

State of Minnesota

Counsel of Record

JOHN S. GARRY

Assistant Attorney General

445 Minnesota Street

Suite 1100

St. Paul, Minnesota 55101-2128

(651) 282-5700

Attorneys for Amici Curiae States

Dated: December 8, 2004