# Amicus Curiae Brief — McCreary County v. American Civil Liberties Union of Ky. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0005%3A31 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2005 - **Citation:** 545 U.S. 844 ## Text 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 ¢ BRIEF OF THE STATES OF MINNESOTA, MISSOURI, ILLINOIS, IOWA, NEW MEXICO, OKLAHOMA, AND WISCONSIN AMICI CURIAE IN SUPPORT OF PETITIONERS ¢ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0005%3A31. Public record. Not legal advice.