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

| 7) eee yn |

No. 03-1693 DEC 8 - 2004 |

OPRICEORFHE CLERK |

In The

Supreme Court of the Anited 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 AMICUS CURIAE,

THOMAS MORE LAW CENTER,

IN SUPPORT OF PETITIONERS

¢

EDWARD L. WHITE III

Counsel of Record

THOMAS MORE LAW CENTER

24 Frank Lloyd Wright Dr.

P.O. Box 393

Ann Arbor, Michigan 48106

734-827-2001

Counsel for Amicus Curiae,

Thomas More Law Center

December 8, 2004

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TABLE OF CONTENTS

PITRE, scvceneccnesecersssesessenaenieneuiienimniainonmaininns

I.

II.

THE CONCEPT OF “UNCONSTITUTIONAL

TAINT” EITHER CARRIES THE PURPOSE

PRONG BEYOND ITS USEFULNESS OR

UNDERMINES THE ABILITY OF STATE

ACTORS TO REMEDY VIOLATIONS OF

pt

A. The Sixth Circuit’s notion of “unconstitu-

tional taint” distorts Lemon’s purpose

prong by presuming unconstitutional pur-

pose instead of deferring to the govern-

ment’s articulated purpose in the absence

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B. To develop the theory of “unconstitutional

taint,” the Sixth Circuit expanded the lim-

ited applicability of Santa Fe v. Doe well

beyond that case’s actual scope ..................

GOVERNMENTS MAY ACT TO REMEDY

THEIR IMPERMISSIBLE PURPOSES WITH-

OUT INCURRING THE “UNCONSTITU-

TIONAL TAINT” SUGGESTED BY THE

6,

A. When examining the constitutionality of a

particular government act, courts examine

the purpose underlying each government

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11

ii

TABLE OF CONTENTS - Continued

Page

B. Given the difficulty of Establishment

Clause analysis, courts routinely allow

governments to modify conduct to comply

with the Constitution without having their

originally suspect purposes held against

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TABLE OF AUTHORITIES

Page

CASES

Abington Sch. Dist. v. Schempp, 374 U.S. 203

Tactic dic dislike caeedasaminieciinnnetenstonneindndeenenines 5, 16

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

STi iiieistiehsdalictaerininbndahiadeanindsbitiatoraiedbedesnendesneseesonens passim

ACLU v. McCreary Cty. 361 F.3d 928 (6th Cir. 2004)....... 20

ACLU v. Schundler, 168 F.3d 92 (3rd Cir. 1998)......... 13, 14

Adland v. Russ, 307 F.3d 471 (6th Cir. 2002) ................... 19

Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991)........... 17

Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir. 1997)......... 5

County of Allegheny v. ACLU, 492 U.S. 573 (1989) .. 12, 13, 16

Doe v. Small, 964 F.2d 611 (7th Cir. 1992)............. ee. 20

Edwards v. Aguillard, 482 U.S. 578 (1987).................... 5, 7

Granzeier v. Middleton, 173 F.3d 568 (6th Cir.

Eid ea ia cesncaaitennattidnnnidadapinanensensantse 16, 17, 18

Lemon v. Kurtzman, 403 U.S. 602 (1971)......... 2, 3, 4, 5, 14

Lynch v. Donnelly, 465 U.S. 668 (1984).................004. 5, 6, 16

McGowan v. Maryland, 366 U.S. 420 (1961).................... 16

Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995)................. 17

Mueller v. Allen, 463 U.S. 388 (1983)...............ccccccceceeeeeeeees 5

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290

link dandecidiesctaemaeniidieisaniindisesaneenninneenens 4,5, 9,10

Stone v. Graham, 449 U.S. 39 (1980)...........cc cece ee eee eee ee 8,11

Wallace v. Jaffree, 472 U.S. 38 (1985)...........ccccesseeeeeereeeees 5

iv

TABLE OF AUTHORITIES — Continued

Page

RULES

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INTEREST OF AMICUS CURIAE

The Thomas More Law Center is a national, non-

profit public interest law firm based in Ann Arbor, Michi-

gan. The Thomas More Law Center is dedicated to defend-

ing and promoting the religious freedom of Christians,

including the display of the Ten Commandments on public

property, time-honored family values, and the sanctity of

human life.’

The Thomas More Law Center accomplishes these

goals on behalf of the citizens of the United States through

education, litigation, and related activities. As part of its

litigation efforts, the Thomas More Law Center has

represented government entities in defense of lawsuits

seeking to remove Ten Commandments monuments from

public property, and the Thomas More Law Center has

submitted amicus curiae briefs in this Court and in the

United States Court of Appeals for the Sixth, Seventh, and

Eleventh Circuits in support of the display of such monu-

ments on public property. Accordingly, the Thomas More

Law Center has acquired an expertise in this area of the

law, which will be of assistance to this Court in deciding

this case.

’ The parties to this litigation have consented to the filing of this

brief, and letters indicating such consent have been filed with this

Court. Sup. Ct. R. 37.2(a). No counsel for a party authored this brief in

whole or in part, and no person or entity aside from the Thomas More

Law Center has made a monetary contribution to the preparation or

submission of this brief. Sup. Ct. R. 37.6. The Thomas More Law Center

has no parent corporation and no stock. Sup. Ct. R. 29.6.

The Thomas More Law Center appears as amicus

curiae in support of petitioners and urges this Court to

reverse the judgment below.

¢

SUMMARY OF ARGUMENT

The United States Court of Appeals for the Sixth

Circuit found that a display containing only the Ten

Commandments imprinted the defendant’s “purpose” from

the beginning with an “unconstitutional taint.” It thereby

created a new rule for Establishment Clause review that

allows a government’s past action to control the analysis of

a current action’s constitutionality. In so doing, the Sixth

Circuit shifted the standard of Lemon’s purpose prong. it

ignored this Court’s rule that government action moti-

vated in part by a religious purpose may still satisfy the

purpose prong. It further ignored this Court’s rule that

courts should accept a government’s articulated purpose

unless evidence clearly indicates a sham. Further, the

Sixth Circuit’s “unconstitutional taint” doctrine ignores

this Court’s caution against second-guessing legislative

purposes. In contrast to the Sixth Circuit’s approach, the

proper inquiry is into the purpose of the current display

and whether the secular purpose stated by the govern-

ment is more than a mere sham. By interpreting the

purpose prong to include an “unconstitutional taint” on

subsequent conduct, the Sixth Circuit wrongly precludes

governments from having an opportunity to turn unconsti-

tutional behavior into constitutional behavior.

¢

3

ARGUMENT

In finding that the government possessed an improper

purpose for creating the “Foundations of American Law

and Government Display,” the Sixth Circuit affirmed the

district court’s finding that the original display, containing

only the Ten Commandments, “imprinted the defendants’

purpose, from the beginning, with an unconstitutional

taint.” ACLU v. McCreary Cty., 354 F.3d 438, 457 (6th Cir.

2003).

Although the Sixth Circuit held that the evolution of

the display did not conclusively reveal an unconstitutional

purpose for the current display, the Sixth Circuit did find

that it “strongly indicated” and “patently evidence[d]” the

government's current purpose. Jd. at 458. Regardless of

the exact weight given to the government’s prior display in

determining its current purpose, the very notion that prior

conduct results in a continuing permeation of unconstitu-

tionality is contrary to the proper inquiry into the gov-

ernment’s actual purpose under Lemon. ;

I. THE CONCEPT OF “UNCONSTITUTIONAL

TAINT” EITHER CARRIES THE PURPOSE

PRONG BEYOND ITS USEFULNESS OR UN-

DERMINES THE ABILITY OF STATE ACTORS

TO REMEDY VIOLATIONS OF THE CONSTI-

TUTION.

The phrase “unconstitutional taint” has long been a

part of constitutional law cases. The Sixth Circuit, how-

ever, injected a novel interpretation by juxtaposing that

concept with the purpose prong of the Lemon test in

Establishment Clause cases. It did this largely by reading

4

this Court’s decision in Santa Fe to mean more than this

Court had intended.

A. The Sixth Circuit’s notion of “unconstitu-

tional taint” distorts Lemon’s purpose

prong by presuming unconstitutional pur-

pose instead of deferring to the govern-

ment’s articulated purpose in the absence

of a sham.

By allowing a government’s past action to control the

analysis of a current action’s constitutionality, the Sixth

Circuit shifted the standard. Its view requires a govern-

ment not simply to articulate a current constitutional

purpose, but to absolve itself from ever possessing a

religious purpose. The Sixth Circuit’s use of the “unconsti-

tutional taint” concept presupposes present unconstitu-

tionality, unless enough time has passed to remove the

stigma. In so doing, the Sixth Circuit has refused to accept

the government’s articulated purpose and has treated the

stated purpose with automatic suspicion simply because

the actor “has a past.” Such a requirement does not com-

port with this Court’s purpose prong analysis.

The purpose prong of the Lemon test requires that a

challenged state action have a secular purpose.’ Lemon uv.

* The Lemon test has three prongs: “First, the state must have a

secular legislative purpose; second, its principal or primary effect must

be one that neither advances nor inhibits religion .. . finally, the statute

must not foster ‘an excessive government entanglement with religion.’”

Lemon, 403 U.S. at 612-13. Whether the display in question here

satisfies Lemon’s other two prongs does not factor into the alleged

applicability of prior conduct in determining current constitutional

purpose.

(Continued on following page)

5

Kurtzman, 403 U.S. 602, 612-13 (1971). In analyzing

whether a government act is constitutional with regard to

its purpose, a government act that is motivated in part by

a religious purpose may satisfy the purpose prong, see,

e.g., Abington Sch. Dist. v. Schempp, 374 U.S. 203, 296-303

(1963) (Brennan, J., concurring), but will not satisfy it if

the act “is entirely motivated by a purpose to advance

religion.” Wallace v. Jaffree, 472 U.S. 38, 56 (1985). As this

Court has explained, a “governmental action [will be

invalidated] on the ground that a secular purpose was

lacking, ... only when [this Court] has concluded there

was no question that the statute or activity was motivated

wholly by religious considerations.” Lynch v. Donnelly, 465

U.S. 668, 680 (1984).

Indeed, courts give government considerable defer-

ence in articulating the purpose for its actions. Unless the

articulated secular purpose is a sham, the purpose prong

is satisfied. See Edwards v. Aguillard, 482 U.S. 578, 586-

87 (1987). In discerning whether the articulated purpose is

genuine, courts have “no license to psychoanalyze” gov-

ernment actors and must be “cautious about attributing

unconstitutional motives to state officials.” Chaudhuri v.

Tennessee, 130 F.3d 252, 236 (6th Cir 1997); see Wallace,

472 US. at 74; Mueller v. Allen, 463 U.s. 388, 394 (1983).

Thus, courts are instructed to accept a government’s

articulated purpose unless evidence clearly indicates a

Justices of this Court have criticized Lemon, and the time has come

for this Court to discard the Lemon test. See, e.g., Santa Fe Indep. Sch.

Dist. v. Doe, 530 U.S. 290, 319-20 (2000) (Rehnquist, CJ., joined by

Scalia and Thomas, JJ., dissenting) (explaining that “Lemon has had a

checkered career in the decisional law of this Court” and collecting

Supreme Court opinions criticizing Lemon).

6

sham. The Sixth Circuit’s concept of “unconstitutional

taint,” however, does not deie: to the government’s stated

purpose for a challenged act. Instead, it second-guesses

the government’s current purpose based on a prior alleg-

edly unconstitutional purpose. Any similar conduct occur-

ring within a short time of the original activity is

automatically suspect. It then falls on the government not

only to articulate reasons for its current conduct, but also

to prove that it has rid itself of its past motives. Placing

the government in this defensive position and presuppos-

ing unconstitutionality, as the Sixth Circuit has done, does

not defer to the government’s stated purpose, thus falling

far short of the standards set forth by this Court.

Numerous cases illustrate how the purpose test is to

be applied when determining whether a valid secular

purpose exists. In Lynch v. Donnelly, 465 U.S. 668 (1984),

this Court upheld the constitutionality of a city display

that included a créche. This Court reversed the district

and circuit courts, which had held that the city’s display

lacked a secular purpose because of the religious nature of

the créche. Jd. at 680. This Court affirmed the “legitimate

secular purposes” of celebrating Christmas and its histori-

cal roots. Jd. at 681. Thus, even though displaying the

créche may have had a religious motive, this Court upheld

the display because the government had articulated

legitimate secular purposes. Id.

Under Lynch, then, even though a religious purpose

may exist for a certain display, as long as the display is not

“motivated wholly by religious considerations,” the display

is constitutional. Jd. at 680. This analysis illustrates the

folly of applying “unconstitutional taint” to a government

display. “Unconstitutional taint” inflates the significance

of a previous religious purpose by focusing on it rather

7

than on the current purpose, and it allows the government

no deference to its articulated purpose, finding a sham

hiding beneath every subsequently-stated purpose.

The concept of “unconstitutional taint,” moreover,

ignores this Court’s caution against second guessing

legislative purposes and misapplies this Court’s direction

to ignore sham secular purposes. This Court analyzed

Louisiana’s “Creationism Act” in Edwards v. Aguillard,

482 U.S. 578 (1987). There, the Court looked beyond the

Act’s stated purpose of “protect[ing] academic freedom.” Jd.

at 585-89. The text of the statute forbade public schools

from teaching evolution unless “creation science” was also

taught. Jd. at 581. Conducting its purpose prong inquiry,

this Court recognized its normal deference “to a State’s

articulation of a secular purpose,” but affirmed the court’s

role in determining “that the statement of such purpose

lis] sincere and not a sham.” Jd. at 586-87. This Court

viewed the articulated purpose with understandable

skepticism, noting that “appellants have not identified any

secular purpose that was not fully served by [existing state

law] before the enactment of [the statute in question].” Jd.

at 588.

In short, this Court used the text of the Creationism

Act to discern that the alleged secular purpose did not

align with the actual effect of the act. While claiming to

promote academic freedom, the Act actually stifled teach-

ers’ freedom to develop the best curriculum possible for

their classrooms by dictating that evolution could only be

taught in conjunction with creationism. The “sham”

uncovered by tiie Court appeared on the face of the chal-

lenged policy.

8

These facts do not parallel the alleged “sham” purpose

articulated by the government actors in McCreary. Here,

the Sixth Circuit could not rely on the contents of the

current display to counter the actors’ articulated secular

purpose. Instead, the Sixth Circuit short-circuited the

analysis by holding the actors’ original conduct against

them when their later conduct was challenged. The Sixth

Circuit adopted the district court’s rationale that the

“defendants’ overall purpose is religious in nature: to

display the Ten Commandments.” McCreary Cty., 354 F.3d

at 457. The analysis begins with the premise that the

original display was “erected in violation of the Supreme

Court’s clear ruling in Stone.” Id. Based on the district

court’s belief that the original conduct openly defied

Establishment Clause jurisprudence, the district court

held that the first display “imprinted the defendants’

purpose, from the beginning, with an unconstitutional

taint... .” Id.

* The district court’s finding that a religious motive existed from

the beginning is conjectural in light of the fact that Stone v. Graham,

449 U.S. 39 (1980), dealt exclusively with legislation requiring the

posting of the Ten Commandments in every classroom. The constitu-

tionality of courthouse representations, as in this case, has not been

expressly addressed in this Court’s precedent.

Given the plethora of Ten Commandments postings in courtrooms

across the country, coupled with this Court’s recognition of religion’s

unique influence in the school setting, the government’s actions here

appear less defiant. Interpreting the government’s conduct in another

light, then, places it not necessarily with an exclusively religious — and

therefore unconstitutional — purpose. Indeed, it illumines the basis for

the government to change its displays in accordance with what it

believed the court required for a constitutional exhibit. Such an

explanation would eliminate the existence of any purpose that could

taint future displays.

9

The Sixth Circuit, thereby, imprinted a religious

purpose on the original display and then carried that

singular purpose through to the current display without

any basis for disregarding the articulated secular purposes

for the new display. By interpreting the purpose prong to

include an “unconstitutional taint” on subsequent conduct,

the Sixth Circuit has denied government the opportunity

to turn unconstitutional behavior into constitutional

behavior. If actions are found unconstitutional because at

one point the actor allegedly possessed an unconstitutional

motive, no unconstitutional action could ever be cured.

The Sixth Circuit’s rule is wrong and should be rejected.

B. To develop the theory of “unconstitutions)

taint,” the Sixth Circuit expanded the lim-

ited applicability of Santa Fe v. Doe well

beyond that case’s actual scope.

The Sixth Circuit relied heavily on Santa Fe Indep.

Sch. Dist. v. Doe, 530 U.S. 290 (2000), to defend its exami-

nation of the evolution of the Ten Commandments display

to determine the government’s purpose. See McCreary

Cty., 354 F.3d at 455-58. But the Sixth Circuit interpreted

Santa Fe to stand for a proposition well beyond how this

Court used the state actor’s past conduct. In Santa Fe, this

Court held that a student-led, student-initiated invocation

before football games violated the Establishment Clause

because the invocation was public speech at a government-

sponsored school event and thereby coerced student

participation in a religious activity. During the course of

litigation, the school district had implemented several

changed policies regarding the practice. Santa Fe, 530

U.S; at 294-99 (tracing the history of the practice). The

first policy required an election to determine whether the

10

invocation should occur and another election to select the

individual to give the invocation. Jd. at 297-98. The re-

vised policy changed the practice’s description from “invo-

cation” and “prayer” to “invocation” or “statement” or

“messages.” Id. at 298.

This Court recognized that the most current policy

violated the Constitution on its face. Jd. at 314. In addi-

tion, it noted that the “solemnization” proposed by the

school district could most assuredly only occur in the form

of a prayer. Jd. at 308-09, 314-17. This Court also noted

that the new policy was simply “a continuation of the

previous policies[,] dramatically illustrated by the fact

that the school did not conduct a new election, pursuant to

the current policy, to replace the results of the previous

election, which occurred under the former policy.” Jd. at

309. “This history,” this Court concluded, “indicates that

the District intended to preserve the practice of prayer

before football games.” Jd.

The policy changes by the school district in Santa Fe

were relevant to determining the purpose of the last policy

simply because the identical conduct — student-led invoca-

tions before football games - was under investigation

throughout the course of litigation. In contrast, the Ten

Commandments display in the instant case underwent

substantial substantive changes during the course of

litigation. Far from being the same practice under a

different name, the Ten Commandments display evolved

from a single copy of the Ten Commandments to a collec-

tion of secular and religious historical and legal documents

(the contents of which underwent two changes). In Santa

Fe, the government actor made no effort to enforce the new

policy by failing to hold new elections; the school district

only made “cosmetic alterations” to the actual contested

11

practice. In contrast, the government actors in this case

fundamentally altered the nature of the exhibit. Its

current conduct is not the same allegedly unconstitutional

conduct that it first undertook.

The mere presence of the Ten Commandments in each

of the displays does not indicate a continuing constitution-

ally-suspect purpose. By the Sixth Circuit’s own admis-

sion, and based on this Court’s discussion in Stone uv.

Graham, 449 U.S. 39 (1980), the Ten Commandments can

be displayed in a constitutional manner. McCreary Cty.,

354 F.3d at 448-49, 459 (“Stone established no per se rule

that displaying the Ten Commandments in an educational

setting is unconstitutional.”). Thus, the Ten Command-

ments continuing presence in the display cannot in itself

be the basis for investigating beyond the government’s

current stated purpose for the display. 8y suggesting that

the government’s original conduct taints every subsequent

display, the Sixth Circuit has misdirected the proper

inquiry into the government’s purpose.

II. GOVERNMENTS MAY ACT TO REMEDY

THEIR IMPERMISSIBLE PURPOSES WITH-

OUT INCURRING THE “UNCONSTITUTIONAL

TAINT” SUGGESTED BY THE SIXTH CIRCUIT.

Rather than focus solely on the constitutionality of its

present purpose, the Sixth Circuit’s notion of “unconstitu-

tional taint” requires a government to display a constitu-

tional exhibit the first time around or forever be imprinted

with the stigma of unconstitutional tendencies.

This Court, and other courts, have found that one

display does not infect another. Further, governments

12

faced with the ambiguity of Establishment Clause juris-

prudence should not be denied the freedom to take in-

struction from prior decisions to comport their conduct

with the Constitution.

A. When examining the constitutionality of a

particular government act, courts exam-

ine the purpose underlying each govern-

ment act individually.

Prudence dictates that the purpose for government

actions be analyzed independently for each government

act. The case of County of Allegheny v. ACLU, 492 US.

573 (1989), illustrates that an unconstitutional purpose

underlying one act does not necessarily imprint a simulta-

neous act with the same impermissible purpose. Following

the example established in Allegheny, the Third Circuit

has separately analyzed the purpose underlying subse-

quent acts by the same government, and the Third Circuit

does not allow an original unconstitutional purpose to

alter the constitutionality of a subsequent display.

In Allegheny, this Court confronted two holiday

displays found on public property in Pittsburgh. Located

in a focal point of the Allegheny County Courthouse, the

first display included a créche, a banner reading “Gloria in

Excelsis Deo!,” poinsettias, a Christmas tree, and a plaque

stating the name of the organization donating the display.

Id. at 579-80. A majority of this Court held that this

display violated the Establishment Clause. Jd. at 621. The

second display, located outside the City-County Building,

depicted a large Christmas tree, Chanukah menorah, and

a sign reading “During this holiday season, the city of

Pittsburgh salutes liberty. Let these festive lights remind

us that we are keepers of the flame of liberty and our

13

legacy of freedom.” Jd. at 581-82. A majority found that the

display was constitutional. Jd. at 621. The two displays

were analyzed separately and none of the justices sug-

gested that because one display was unconstitutional, the

other display was “tainted” by the same purpose. Instead,

each display, and the purpose behind it, was analyzed in

terms of its own content.

The Third Circuit, applying these principles in ACLU

v. Schundler, 168 F.3d 92 (3rd Cir. 1999), spurned the_

argument that Jersey Citys “prior history” should be

taken into account when analyzing the city’s purpose

behind modifying a Christmas holiday display. For dec-

ades, Jersey City exhibited a holiday display that featured

a menorah and a Christmas tree. Jd. at 94-95. The district

court permanently enjoined the display as a violation of

the Establishment Clause. Jd. at 95. After the injunction

was ordered, Jersey City erected a modified display that

included “not only a créche, a menorah, and Christmas

tree, but also large plastic figures of Santa Claus and

Frosty the Snowman, a red sled, and Kwanzaa symbols on

the tree.” Jd. at 95. The city also posted signs indicating

that the display was “one of a series . . . put up by the City

throughout the year to celebrate its residents’ cultural and

ethnic diversity.” Id.

The plaintiffs had argued:

Jersey City’s addition of the secular symbols was

“a ploy designed to permit continued display of

the religious symbols.” The suggestion seems to

be that, even if Jersey City could have properly

erected the modified display in the first place,

the City’s initial display, which was held to vio-

late the Establishment Clause, showed that the

city officials were motivated by a desire to evade

14

constitutional requirements and that this moti-

vation required invalidation of the modified dis-

play.

Id. at 105. Rejecting this contention, the Third Circuit

stated,

[t]he mere fact that Jersey City’s first display

was held to violate the Establishment Clause is

plainly insufficient to show that the second dis-

play lacked “a secular legislative purpose,” or

that it was “intend[ed] to convey a message of

endorsement or disapproval of religion.”

Id. (internal citations omitted). The Third Circuit recog-

nized that this Court’s

decisions regarding holiday displays have been

marked by fine line-drawing, and therefore it is

not easy to determine whether particular dis-

plays satisfy the Court’s standards. Under these

circumstances, the mere fact that city officials

miscalculate and approve a display that is found

by the federal courts to cross over the line is

hardly proof of the officials’ bad faith.

Id.

A similar minefield of constitutionality exists for

many Establishment Clause cases, especially in interpret-

ing Lemon’s purpose prong. This Court has frequently

remarked upon the test’s inherent shortcomings.‘ As such,

a government’s initial attempt to comport with the Consti-

tution should not later be used against it when that initial

attempt turns out to be contrary to the requirements of

* See, n. 2, supra.

15

the Establishment Clause. By using the concept of “uncon-

stitutional taint,” the Sixth Circuit has allowed one

constitutionally-suspect purpose to eternally poison the

purpose behind any similar subsequent display, a concept

this Court must reject.

B. Given the difficulty of Establishment Clause

analysis, courts routinely allow govern-

ments to modify conduct to comply with the

Constitution without having their originally

suspect purposes held against them.

This Court’s jurisprudence has long recognized that

governments initially acting unconstitutionally are free to

change their conduct to conform to the Constitution. If the

future conduct is challenged, courts focus solely on the

constitutionality of that conduct and do not mark the actor

with a scarlet stain of permanent suspicion. This funda-

mental legal principle has been incorporated into the

Court’s Establishment Clause jurisprudence. The cases

supporting this principle are too numerous to detail, but a

few examples are particularly insightful for demonstrating

that “unconstitutional taint,” in the words of the McCreary

dissent, “offends common sense.” McCreary Cty., 354 F.3d

at 477 (Ryan, J., dissenting). An actor may initially engage

in unconstitutional conduct or with suspect purpose

without having that fact used against him when analyzing

the constitutionality of similar conduct or purpose.

On numerous occasions, a government has initiated a

particular policy or conduct for wholly religious purposes,

yet over time additional secular or historical reasons for

continuing the practice emerged. As this Court has stated,

governments may “retai(n] [a] la{[w) for the permissible

purpose of furthering overwhelmingly secular ends” even

16

though the original purpose was wholly religious in

nature. Schempp, 374 U.S. at 263-64. For example, in

McGowan v. Maryland, 366 U.S. 420 (1961), this Court

upheld Sunday closure laws even though they were origi-

nally enacted for religious ends.

Similarly, in the holiday display cases, this Court did

not examine the government’s original purpose for display-

ing religious symbols in its Christmas displays. The

relevant inquiry was the purpose for maintaining the

practice during the current holiday season. Even though

the original purpose may have been dominated by a

religious purpose, because the current displays included

important secular purposes, the displays passed Estab-

lishment Clause scrutiny. See, e.g., County of Alleghenv uv.

ACLU, 492 U.S. 573 (1989); Lynch v. Donnelly, 465 U.S.

668 (1984).

In each case, the original purpose did not taint the

later articulated purposes. The same conduct originally

practiced for religious purposes was upheld because the

government now had a legitimate secular purpose. Despite

the government’s original religious purpose, this Court did

not summarily dismiss a genuine, but only later articu-

lated, secular purpose. If the purpose underlying the exact

same conduct can be changed without poisoning that act,

then the purpose behind changed conduct should not

poison the modified act. -

Several circuit courts examining modified displays

have recognized that governments should be free to

change their conduct and articulate legitimately secular

reasons for acting even if their original purpose was

constitutionally suspect. In the Sixth Circuit case of

Granzeier v. Middleton, 173 F.3d 568 (6th Cir. 1999), the

17

defendant government officials adopted holiday closing

schedules that included Good Friday. On her own initia-

tive, a government employee posted signs with an image of

the crucifixion announcing that the building would be

closed “for observance of Good Friday.” Id. at 571.

Plaintiffs sued to have the signs removed, after which

the government removed the Good Friday signs and

replaced them with signs announcing a closing for the

same day in honor of a “Spring Holiday.” Jd. The Sixth

Circuit affirmed the secular purpose for closing govern-

ment offices on Good Friday and allowed the closures to

continue even though the original display indicated a

religious purpose. Jd. at 578. Dismissing the Good Friday

observance’s relevance to determining the purpose of the

spring holiday closures, the court stated, “the fact that a

particular closing was once constitutionally suspect does

not prevent it from being reinstated in a constitutional

form.” Id. at 574; id. at 576 (“[Wle hold that the sign

posted for several days ... did not permanently taint the

closings. . . . ”); see also Metzl v. Leininger, 57 F.3d 618, 624

(7th Cir. 1995) (where despite affirming the unconstitu-

tionality of a similar Good Friday closure law, the United

States Court of Appeals for the Seventh Circuit expressed

with confidence that the state could reinstate the exact

same practice “by officially adopting a ‘spring weekend’

rationale for the law, in place of the governor’s proclama-

tion of a state religious holiday, or by moving to a system

of local option for school districts”); Cammack v. Waihee,

932 F.2d 765 (9th Cir. 1991) (where the purpose for the

holiday had become sufficiently secularized so as to pass

constitutional muster despite any originally predominant

religious purpose).

18

Analyzing Granzeier, it seems incredulous that the

same circuit court would draw an antithetical conclusion

in McCreary. Rather than find that “the fact that a par-

ticular [display] was once constitutionally suspect does not

prevent it from being reinstated in a constitutional form,”

the Sixth Circuit stated in McCreary that the original

display tainted the subsequent displays with a primarily

religious purpose. The purpose analysis in Granzeier and

McCreary should have been based on the same criteria. In

both cases, religious motives may have driven the original

posting, but in both cases a legitimate primary secular

purpose undergirded later conduct.

In Granzeier, the Sixth Circuit declined to read

anything into the fact that the government closing still

occurred on Good Friday. Because there were valid secular

reasons for the closing, the practice was held constitu-

tional. The government achieved the same result (offices

being closed on Good Friday) through constitutional

means merely by changing the language of a sign. Conse-

quently, the alleged unconstitutional sign had no bearing

on the current practice under suspicion. This reasoning

applies with even greater weight in McCreary, where not

only the label given to a particular display changed, but

also the very contents of the conduct in question expanded.

Here, the result of the change fundamentally altered the

nature of the conduct and made it constitutional. To be

logically consistent then, if no “unconstitutional taint”

applied to the government actor in Granzeier, none should

apply against the actors in McCreary.

Before issuing its decision in McCreary, the Sixth

Circuit had indicated that a previously unconstitutional

purpose for a Ten Commandments display would not

prevent a modified exhibit from being held constitutional.

19

In Adland v. Russ, 307 F.3d 471 (6th Cir. 2002), plaintiffs

challenged a Kentucky legislative resolution relocating a

monument inscribed with the Ten Commandments to a

permanent site on the capitol grounds. The monument was

to be part of a “historical and cultural display,” but no

other such monuments (with the exception of a floral

clock) were yet on the premises. Jd. at 477. Responding to

the litigation, the legislature announced some of the

intended accompanying monuments that would be added

to the display. Jd. Although the Sixth Circuit held that the

monument standing by itself violated the Establishment

Clause, it confidently expressed that “with careful plan-

ning and deliberation, and perhaps consultation with the

plaintiffs, the Commonwealth can permissibly display the

monument in question.” Id. at 490.

The court in Adland encouraged the government to

create a constitutional display that would comply with the

Establishment Clause, but in McCreary the same court

penalized the government for undertaking just such an

endeavor. If any subsequent displays that would include

the Ten Commandments would be forever tainted by the

original display containing only the Ten Commandments

monument, the Adland court never should have explained

that a constitutional display was possible.

In effect, the purpose behind the original McCreary

display and the Adland display — in the Sixth Circuit’s

view — was primarily religious. In Adland, then, the court

suggests that the Ten Commandments may be displayed

in a broader context. The McCreary decision analyzes just

such a broader context — the challenged exhibit features a

variety of historical and legal documents, both religious

and secular. Yet in finding an improper purpose behind the

new display, the Sixth Circuit in McCreary relies heavily

20

upon the original display and its alleged primary religious

purpose. The Sixth Circuit’s holding in McCreary ignores

the clear precedent from this Court that a government’s

purpose for acting can evolve over time without penalty.

As Judge Boggs correctly stated in his dissent from

the denial of a motion to rehear McCreary, “governmental

bodies, like other litigants, should be free to take instruc-

tion from prior decisions or arguments, and thus to es-

chew, or move away from, practices that are contrary to

law.” ACLU v. McCreary Cty., 361 F.3d 928, 933 (6th Cir.

2004). The notion of “unconstitutional taint” denies gov-

ernments this basic right. The Sixth Circuit erred in

holding that the government’s original, allegedly unconsti-

tutional purpose cast suspicion on the purpose underlying

future displays that included the Ten Commandments.”

¢

* The Seventh Circuit has also rejected the idea of “unconstitu-

tional taint” and has recognized that unconstitutional conduct by one

individual does not preclude the same conduct being conducted by

another individual possessing a constitutional purpose. In Doe v. Small,

964 F.2d 611 (7th Cir. 1992), litigation began when the City of Ottawa

displayed sixteen paintings depicting the life of Christ in a city park.

Id. at 612-15. The district court held that this action violated the

Establishment Clause and permanently enjoined any future display of

such paintings in the park. Jd. at 617. In reversing the decision, the

Seventh Circuit stated, “[the injunction] implies that once the govern-

ment impermissibly endorses religious speech (e.g., the paintings), that

particular speech becomes poisoned and no private party may thereaf-

ter express that view.” Jd. at 621. Citing numerous cases where the

government has been allowed to cure previously unconstitutional

behavior, the Seventh Circuit rejected the proposition that unconstitu-

tional conduct permanently taints future conduct with the same

unconstitutionality. Jd.

21

CONCLUSION

For the above-stated reasons, and for the reasons

stated in the petitioner’s brief, this Court should reverse

the judgment below.

Respectfully submitted,

EDWARD L. WHITE III

Counsel of Record

THOMAS MORE LAW CENTER

24 Frank Lloyd Wright Dr.

P.O. Box 393

Ann Arbor, Michigan 48106

(734) 827-2001

Counsel for Amicus Curiae,

Thomas More Law Center

December 8, 2004