Amicus Curiae Brief — Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 451 (2018) (No. 17-1717)

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Nos. 17-1717, 18-18

In the Supreme Court of the Anited States

AMERICAN LEGION, et al.,

Petitioners,

Vv.

AMERICAN HUMANIST ASSOCIATION, et al.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Fourth Circuit

Brief of Religious and Civil-Rights Organizations

as Amici Curiae in Support of Respondents

STEVEN M. FREEMAN RICHARD B. KATSKEE

DAVID L. BARKEY Counsel of Record

AMY FEINMAN PATRICK GRUBEL*

Anti-Defamation League Americans United for

605 Third Ave. Separation of Church

New York, NY 10158 and State

(212) 885-7859 1310 L St. NW, Ste. 200

Washington, DC 20005

nae yy (202) 466-3234

Hindu American katskee@au.org

Foundation DANIEL MACH

910 17th St. NW, HEATHER L. WEAVER

Ste 316A American Civil Liberties

Washington, DC 20006 Union Foundation

(202) 223-8222 915 15th St. NW

Washington, DC 20005

(202) 675-2330

(Additionai caption and counsel on inside cover)

MARYLAND—NATIONAL CAPITAL

PARK AND PLANNING COMMISSION,

Petitioner,

Vv.

AMERICAN HUMANIST ASSOCIATION, et al.,

Respondents.

ELLIOT M. MINCBERG DEBORAH A. JEON

DIANE LAVIOLETTE ACLU Foundation of

People for the American Maryland

Way Foundation 3600 Clipper Mill Rd.,

1101 15th St. NW, Ste. 600 Ste. 350

Washington, DC 20005 Baltimore, MD 21211

(202) 467-4999 (410) 889-8555

JEFFREY I. PASEK

Cozen O’Connor

1650 Market St., 28th FI.

Philadelphia, PA 19102

(215) 665-2072

TABLE OF CONTENTS

Page

Table of Authorities.................-----------+--seeeeeeeneeeeeneees ill

Interests of the Amici Curiae............-------------++s--0+0009" 1

Introduction and Summary of Argument................--- 2

Argument ..........-..--.---c0---ecseeceenensnnennnnnsnnesnnneenenennenennes 4

A. The Judgment Is Consistent With The

History, Purpose, And Original

Understanding Of The Religion

i csscsccconsccscsnsssinnsinniincnrensiocsanenasneenscconsees 5

1. The Religion Clauses were premised

on the recognition that

governmental involvement with

religion is a grave threat to religious

Dee, ........ccccsonssessnnstnnenectsocoenacsncsscasenscesezees 5

2. The Framers recognized that

religious pluralism and civil

harmony require strict neutrality in

matters of religion. ...............----------.--.0s:s-" 9

B. The Counties’ Cross Display Intrudes

On Religious Freedom. ..............---------+-------0" 14

1. The Latin cross is an unmistakable

and potent symbol of Christianity. ........... 14

2. The counties’ cross display

constitutes official religious

Den... cccssscnmetmiemtssennememinenscrscsnseesss 16

C. The Legal Tests Advocated By Those

Seeking To Uphold The Official Cross

Display Fall Far Short Of The Original

Guarantees Of The First Amendment........... 22

TABLE OF CONTENTS—continued

Page

1. A narrow focus on legal coercion

would allow official favoritism to

degrade religious freedom and

render the Establishment Clause

ENE 23

2. A test limited to considering

practices at the time of ratification

3. The absence of past challenges to an

act of religious favoritism does not

alone show lack of cognizable harm. ........ 31

TABLE OF AUTHORITIES

Page(s)

CASES

Abington Sch. Dist. v. Schempp,

374 U.S. 203 (1963) 2.00.00... 26, 29, 30, 32

American Atheists, Inc. v. Duncan,

616 F.3d 1145 (10th Cir. 2010)... 16, 18

Arizona Christian Sch. Tuition Org. v. Winn,

I, CI cs cssineumsewssimeenncetngs 12

Board of Educ. v. Grumet,

EE a 26

Borden v. School Dist.,

523 F.3d 153 (3d Cir. 2008) .....0 33

Bowen v. Kendrick,

SE a a ee 24

County of Allegheny v. ACLU

Greater Pittsburgh Chapter,

492 U.S. 573 (1989) o.oo... cece ccceeceeeeeeee ee passim

Davis v. Beason,

See en I sssnenenmemmmnenenmemes 12

District of Columbia v. Heller,

Se es 26

Edwards v. Aguillard,

SR TE ee ee bd 24

Engel v. Vitale,

I re ce passim

Epperson v. Arkansas,

eee eee te 3, 30

Everson v. Board of Educ.,

RSE ek EE Se Se ee passim

Flast v. Cohen,

DUI Pk 12, 30

TABLE OF AUTHORITIES—continued

Page(s)

Glassroth v. Moore,

335 F.3d 1282 (11th Cir. 2003)......0..0000000000000..... 33

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

I, Bie I iccccicccsinncncusinsennseanuntncsioce 12, 30

Illinois ex rel. McCollum v. Board of Educ.,

Se Ps Ce GR etccetrncttctcevecccnsncsccvcereccses 12, 31

Kitzmiller v. Dover Area Sch. Dist.,

400 F. Supp. 2d 707 (M.D. Pa. 2005).................. 34

Larson v. Valente,

Eee 2, 4, 24

Lee v. Weisman,

Be CI oo cscoceccocccesevscosccsesensecsnas passim

Lynch v. Donnelly,

GD UE, Ge CIO x necincececccesececcescccecscccocccseseess 3, 32

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .....0000. oe. 26

Marsh v. Chambers,

463 U.S. 783 (1963)....................................... 27, 30

McCreary County v. ACLU of Ky.,

545 U.S. 844 (2005)............ 0... cece ccecce cece enone passim

Murdock v. Pennsylvania,

Ss PI ..neccsemsusccmunundonscamsumnonan 28

Reynolds v. United States,

I a eee eee 12

Rosenberger v. Rector &

Visitors of Univ. of Va.,

I cnetssaiusbisiemeunetbiinlonens 24

Salazar v. Buono,

EG CII ccsandscictiasenenteesqunenidoes 3, 16, 20

TABLE OF AUTHORITIES— continued

Page(s)

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

530 U.S. 290 (2000)... cee ccccccccc cece eeeeteenees 3, 32

Separation of Church & State

Comm. v. City of Eugene,

93 F.3d 617 (9th Cir. 1996) ...0.. 0... 18

Texas v. Johnson,

Ge SN He Ci icvececcenccecseccvccccececeocensossesnsesens 14

Town of Greece v. Galloway,

Ee Cs He i ccccccvcccccccececcsccescsscsconevsess 27, 30

Trunk v. City of San Diego,

629 F.3d 1099 (9th Cir. 2011)..........0..00........ 18, 28

Van Orden v. Perry,

es ee I cvcsscececencensvesoccecccecesessennee 13, 31

Wallace v. Jaffree,

is II cccccssusnesscvcncoecscescvoenscensnecees 4, 29

Walz v. Tax Comm'n,

397 U.S. 664 (1970)... cece eee 12, 27, 30

Watson v. Jones,

80 U.S. (13 Wall.) 679 (1871)......-..0.0 ee. 12

West Va. Bd. of Educ. v. Barnette,

SIO U.S. GB4 (1D43B)..............00...000..0cc0... cece 14, 34

Witters v. Washington Dep't

of Servs. for the Blind,

ee ee iiitertercinscniviccecsessissrescocsescston 30

Wynne v. Town of Great Falls,

376 F.3d 292 (4th Cir. 2004)..........0000.000.... 33

Zorach vy. Clauson,

ey a I I I inccnccctinnenennetiusconeuness 24

TABLE OF AUTHORITIES—continued

Page(s)

CONSTITUTIONS, STATUTES, AND REGULATIONS

SR I, I Bc vcsiciccsepiniisedsncbenenenmsesiane passim

nn I I ck ean apenasnatasebiaaon 28

a lial 21

MISCELLANEOUS

Robert S. Alley, Without a Prayer: Religious

Expression in Public Schools (1996)................... 32

Akhil Reed Amar, The Bill of Rights: Creation

and Reconstruction (1998) .............:..c-ceeeseeeeeeeeeees 9

Appellant’s Brief, Staley v. Harris County,

461 F.3d 504 (5th Cir. 2006) (No. 04-20667)...... 33

Available Emblems of Belief for Placement on

Government Headstones and Markers, U.S.

Dep’t of Veterans Affairs, Nat'l Cemetery

Admin., https://bit.ly/2ydVtE3 ........................... 21

George Willard Benson, The Cross: /ts History

ee I acta ttentcetecccednrctnnieteisecnicnsens 15

Rob Boston, Plucky Lindy, Church & State

(Apr. 2004), http://tinyurl.com/h47gja2.............. 33

Daniel O. Conkle, Toward a General

Theory of the Establishment Clause,

82 Nw. U. L. Rev. 1113 (1988)............................ 28

1 A Cyclopedia of Education

CE I GE, Bi bceccccccsessccesccscenscnsscesocoseess 29

Carl H. Esbeck, Protestant Dissent and the

Virginia Disestablishment, 1776-1786,

7 Geo. J.L. & Pub. Pol’y 51 (2009)...............00....... 8

Eusebius, Life of Constantine (Averil Cameron

& Stuart G. Hall trans. 1999)............................. 15

TABLE OF AUTHORITIES—continued

Page(s)

The Federalist No. 10 (James Madison).................. 10

The Federalist No. 51 (James Madison).................. 10

Noah Feldman, The Intellectual Origins

of the Establishment Clause,

77 N.Y.U. L. Rev. 346 (2002)...................... 6, 7, 10

Letter from Benjamin Franklin to

Richard Price (Oct. 9, 1780),

ER 8

Edwin S. Gaustad, Roger Williams (2005)................ 7

Winthrop S. Hudson, Religion in

pS ESTER RE 9

Thomas Jefferson, The Virginia Statute

for Religious Freedom (Jan. 16, 1786),

reprinted in Founding the Republic:

A Documentary History (John J. Patrick

Ei Te ihsnsteitatictetsindntniaeeiaeediiphuainsiidiimnsnbanacenss 11, 12

Kyle D. Johnson et al., Pilot Study of the Effect

of Religious Symbols on Brain Function:

Association with Measures of Religiosity,

1 Spirituality in Clinical Practice 82 (2014),

I iis cn cceninseiiionaniabenstivcdeeines 19

Douglas Keister, Stories in Stone: A Field

Guide to Cemetery Symbolism and

iia ckictictivccnsndonewsnen 16

Ron Knox, Judge in Dover 1D. Case

Touts Legal Independence, Lawrence

Journal-World (Sept. 27, 2006),

eee UAE GI OIGE «....cccccccccsecscccccesscscesscessess 34

vill

TABLE OF AUTHORITIES—continued

Page(s)

Douglas Laycock, Government-

Sponsored Religious Displays:

nt Rationalizations

and Expedient Post-Modernism,

61 Case W. Res. L. Rev. 1211 (2011)..........--.

Douglas Laycock, Religious Liberty

and the Culture Wars,

2014 U. Ill. L. Rev. 839 (2014)...........---..

Sara Amy Leach, World War I Veterans

and Their Federal Burial Benefits,

41:4 AGS Q.: Bull. Ass’n for

Gravestone Studies 36 (2017),

https://bit.ly/2Cd Bu 7 w .........-------0eeeeeeserrereree

Lauri Lebo, The Devil in Dover (2008) .........--..--

John Locke, A Letter Concerning Toleration

(James H. Tully ed., Hackett Publ’g Co.

1983) (1G689)..........-:-ecceeeeeeeeeceseneenennerrnnssenenenees

Bruce W. Longenecker, The Cross Before

Constantine: The Early Life of a Christian

Symbol (2015).......--+----+-seeeeeceeseeneennnnenennenennenes

James Madison, Memorial and Remonstrance

Against Religious Assessments, reprinted

in Everson v. Board of Educ., 330 U.S. 1

Letter from James Madison to

William Bradford (Apr. 1, 1774),

http:/bit.ly/2h57Xm5...... 2

Letter from James Madison to

Edward Livingston (July 10, 1822),

http://bit.ly/2ZUXMBT .........--------.-2eeseeerreere

TABLE OF AUTHORITIES—continued

Page(s)

Richard P. McBrien, Caesar’s Coin: Religion

and Politics in America (1987) ......................-..++- 7

Michael W. McConnell, The Origins

and Historical Understanding of

Free Exercise of Religion,

103 Harv. L. Rev. 1409 (1990)..............00-..00...... 10

Alister E. McGrath, Christianity:

An Introduction (3d ed. 2015)................. 14, 15, 16

Jon Meacham, American Gospel: God, the

Founding Fathers, and the Making of

I iain cinta tanedunsigeieiheeonsapeosenenet 10

Andy G. Olree, “Pride Ignorance and

Knavery”: James Madison’s Formative

Experiences with Religious Establishments,

36 Harv. J.L. & Pub. Pol’y 211 (2013)................ 10

Nicholas Jackson O'Shaughnessy, Politics

and Propaganda (2004) ..........................00ee0e0000e 14

Merrill D. Peterson, Jefferson

and Religious Freedom,

Atlantic Monthly (Dec. 1994),

a. es peeeanseniosans )

Pope Francis: The Cross Is the Gate of

Salvation, Catholic News (Mar. 12, 2017),

http://bit.ly/2CLyEGE..........................ceceeeeeees 15, 16

Frank S. Ravitch, Religious

Objects as Legal Subjects,

40 Wake Forest L. Rev. 1011 (2005) .................. 16

Jonathan Riley-Smith, The Crusades:

Fy MIE cincidenticncindediiecvsscnesecscesetasenes 15

TABLE OF AUTHORITIES—continued

Page(s)

Philip A. Saigh, The Effect of Perceived

Examiner Religion on the Digit Span

Performance of Lebanese Elementary

Schoolchildren,

109 J. Soc. Psychol. 167 (1979)........................... 19

Philip A. Saigh, Religious Symbols and the

WISC-R Performance of Roman Catholic

Junior High School Students,

147 J. Genetic Psychol. 417 (1986)..................... 19

S.C. Prayer Plaintiff Faces Wrath of

Community Over Lawsuit,

Church & State 20 (Nov. 2004),

http://tinyurl.com/zka3n6r.................................. 33

Wayne R. Swanson, The Christ Child

ee te Sa eticrenicresscennsdsncecessseescosssesens 32

Richard Taylor, How to Read a Church:

A Guide to Symbols and Images in

Churches and Cathedrals (2003)........................ 15

| Alexis de Tocqueville, Democracy in

America (Bradley ed. 1945) ..............................-. 29

Transcript of Oral Argument,

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

NN rea nicest ciacinteisceascnsennnseds 25, 26

Transcript of Oral Argument,

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

530 U.S. 290 (2000) (No. 99-62)..............00000....... 32

U.S. Conference of Catholic Bishops, Built

of Living Stones: Art, Architecture, and

ESR EEE a a eS ee 16

TABLE OF AUTHORITIES—continued

Page(s)

Roger Williams, The Bloudy Tenent of

Persecution for Cause of Conscience (1644),

reprinted in 3 Complete Writings of Roger

Williams (Samuel L. Caldwell ed., 1963)... 6, 7, 10

John Witte Jr., Religion and the American

Constitutional Experiment (2d ed. 2005) ........... 10

BRIEF OF RELIGIOUS AND CIVIL-RIGHTS

ORGANIZATIONS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

INTERESTS OF THE AMICI CURIAE

Amici are religious and civil-rights organizations

whose members include adherents to a wide array of

faiths and beliefs that have historically been subjected

to religious discrimination and official disfavor. Our

differing belief systems notwithstanding, amici are

united in respecting the important but distinct roles

of religion and government in the life of our Nation.

From the time of +he founding, the Establishmeut

Clause and the religious and philosophical ideals on

which it is premised have protected religious freedom

for all Americans by ensuring that government does

not interfere in private matters of conscience. !

A governmental display of a Latin cross as a me-

morial to veterans is deeply hurtful and exclusionary

to the countless non-Christians who have died in ser-

vice to our Nation. Amici have strong interests in en-

suring that equal sacrifices by our fellow citizens are

treated with equal regard and that this Court’s juris-

prudence remains true to the fundamental principles

on which the Religion Clauses of the First Amend-

ment are based.

' No counsel for a party authored this brief in whole or in part,

and no person other than amici, their members, or their counsel

made a monetary contribution to fund the briefs preparation or

submission. The parties’ letters consenting to the filing of amicus

briefs are on file with the Clerk.

The amici are:

Americans United for Separation of Church

and State.

American Civil Liberties Union.

American Civil Liberties Union of Maryland.

Anti-Defamation League.

Hadassah, the Women’s Zionist Organization

of America, Inc.

Hindu American Foundation.

Interfaith Alliance Foundation.

Jewish Social Policy Action Network.

Men of Reform Judaism.

National Council of Jewish Women.

People for the American Way Foundation.

Reconstructing Judaism.

Reconstructionist Rabbinical Association.

Union for Reform Judaism.

Women of Reform Judaism.

Individual descriptions of the amici appear in the

Appendix.

INTRODUCTION AND

SUMMARY OF ARGUMENT

“The clearest command of the Establishment

Clause is that one religious denomination cannot be

officially preferred over another.” Larson v. Valente,

456 U.S. 228, 244 (1982); accord, e.g., McCreary

County v. ACLU of Ky., 545 U.S. 844, 860 (2005) (gov-

ernment must remain “neutral{] between religion and

religion, and between religion and nonreligion” (quot-

ing Epperson v. Arkansas, 393 U.S. 97, 104 (1968)).

By ordaining that governmental and religious au-

thorities operate in separate spheres, the Framers

sought to safeguard religion from governmental influ-

ence and interference, so that all may worship and

pray, or not, according to the dictates of individual

conscience. And they undertook to quell the “hatred,

disrespect, and even contempt” that historically has

resulted “whenever government ha[s] allied itself with

one particular form of religion.” Engel v. Vitale, 370

U.S. 421, 431 (1962). The First Amendment thus dis-

allows official religious favoritism, no matter how

modest or how benign in intent.

“The cross is of course the preeminent symbol of

Christianity.” Salazar v. Buono, 559 U.S. 700, 725

(2010) (Alito, J., concurring in part and concurring in

the judgment). For some Christians, contemplating a

government-sponsored symbol of their faith may be a

profoundly affirming experience. But for those who do

not subscribe to Christian beliefs, being confronted

with an official display of a Latin cross may be a pro-

found experience in a quite different way.

For members of minority faiths, the towering

Latin cross here conveys a strong message of exclusion

and secondary status, whatever the counties’ intent.

It announces that Bladensburg is a Christian polity,

where Christians “are insiders, favored members of

the political community,” and all others “are outsid-

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

309-310 (2000) (quoting Lynch v. Donnelly, 465 U.S.

668, 688 (1984) (O'Connor, J., concurring)). And the

harm is all the greater because the counties proclaim

the cross to be a memorial to all veterans, without re-

gard to the countless non-Christians who fought and

died for our country.

When government chooses, as it should, to honor

those who have made the ultimate sacrifice for our

Nation, it should recognize the equal citizenship and

equal sacrifice of all. It should not favor only those

who hold a preferred faith or set of beliefs.

This Court’s long-standing jurisprudence, which

forbids such religious favoritism, appropriately safe-

guards religious freedom for all. As the United States

becomes increasingly religiously diverse, that consti-

tutional protection is more crucial than ever. The

Court should therefore reject any invitation to forsake

our “profound commitment to religious liberty”

(McCreary, 545 U.S. at 884) and should instead reaf-

firm the fundamental principles and essential protec-

tions for religious freedom that have served this coun-

try and all its people so well for so long.

ARGUMENT

“(T]he Framers of the First Amendment forbade”

any “official denominational preference,” mandating

instead the strict “principle of denominational neu-

trality.” Larson, 456 U.S. at 246, 255.2 Petitioners ask

2 Accord, e.g., Lee vy. Weisman, 505 U.S. 577, 641 (1992) (Scalia,

J., dissenting) ([O]ur constitutional tradition, from the Declara-

tion of Independence and the first inaugural address of Washing-

ton * * * down to the present day, has * * * ruled out of order gov-

ernment-sponsored endorsement of religion * * * where the en-

dorsement is sectarian * * *.”); Wallace v. Jaffree, 472 U.S. 38,

113 (1985) (Rehnquist, J., dissenting) (‘The [Establishment!

Clause was * * * designed to stop the Federal Government from

asserting a preference for one religious denomination or sect over

others.”).

this Court to approve a towering Latin cross as an of-

ficial monument to all veterans and fallen soldiers,

without regard for the diverse faiths and beliefs of

those who actually served and died for our country.

Petitioner American Legion and a number of petition-

ers’ amici further ask the Court to rewrite Religion

Clause jurisprudence wholesale, so as to license all

manner of official favoritism toward the majority

faith. Both requests are inconsistent with the funda-

mental constitutional principles that the Framers put

in place to protect religious freedom. They should be

rejected.

A. The Judgment Is Consistent With The

History, Purpose, And Original Under-

standing Of The Religion Clauses.

I. The Religion Clauses were premised on the

recognition that governmental involve-

ment with religion is a grave threat to reli-

gious freedom.

The architects of the First Amendment recognized

that “Religion & Govt. will both exist in greater pu-

rity, the less they are mixed together.” Letter from

James Madison to Edward Livingston (July 10, 1822),

http://bit.ly/2zUXhBT. This principle—that religion

flourishes best when government is least involved—

has deep roots in theology and political philosophy

that long predate the founding of the Republic.

Grounded in the belief that freedom of conscience is

an essential component of faith, as well as the experi-

ence of a long, sad history of religiously based strife

and oppression, the constitutional principle of separa-

tion of religion and government recognizes that gov-

ernmental support for religion corrodes true belief,

risks making religious denominations and houses of

worship beholden to the state, and places subtle—or

not so subtle—coercive pressure on individuals and

faith groups to conform.

a. The notion of freedom of conscience as a moral

virtue traces to the thirteenth-century teachings of

Thomas Aquinas, who wrote that conscience must be

a moral guide and that acting against one’s conscience

constitutes sin. See Noah Feldman, The Intellectual

Origins of the Establishment Clause, 77 N.Y.U. L.

Rev. 346, 356-357 (2002). Martin Luther built on this

idea, teaching that the Church lacks authority to bind

believers’ consciences on spiritual questions: “the in-

dividual himself c[an] determine the content of his

conscience based on scripture and reason.” /d. at

358-359. John Calvin developed the idea further,

preaching that individual conscience absolutely de-

prives civil government of authority to dictate in mat-

ters of faith. See id. at 359-361.

These tenets found expression in the New World

teachings of Roger Williams, the Baptist theologian

and founder of Rhode Island. Williams preached that

for religious belief to be genuine, people must come to

it of their own free will. Compelled belief and punish-

ment of dissent are anathema to true faith, and reli-

gious practices are sinful unless performed “with|]

faith and true perswasion that they are the true insti-

tutions of God.” Roger Williams, The Bloudy Tenent of

Persecution for Cause of Conscience (1644), reprinted

in 3 Complete Writings of Roger Williams 12 (Samuel

L.. Caldwell ed., 1963).

Thus, Williams taught, keeping government from

involving itself with or taking sides in matters of reli-

gion is crucial to protect religious dissenters against

persecution and to safeguard religion itself against

impurity and dilution. See Williams, The Bloudy

Tenent, supra, at 12-13; Edwin S. Gaustad, Roger Wil-

liams 59 (2005); Richard P. McBrien, Caesar’s Coin:

Religion and Politics in America 248 n.37 (1987)

(“[T]he Jews of the Old Testament and the Christians

of the New Testament ‘opened a gap in the hedge or

wall of separation between the garden of the church

and the wilderness of the world. * * * [I]f He will ever

please to restore His garden and Paradise again, it

must of necessity be walled in peculiarly unto Himself

from the world.” (quoting Williams)). When govern-

ment involves itself in matters of religion, even if just

to give the barest nod of approval to a particular faith

or set of beliefs, the inherent coercive authority of the

state impedes the exercise of free will.

b. This theology became the foundation for the po-

litical thought on which our constitutional order was

built. Notably, John Locke incorporated it into his ar-

gument for religious toleration:

Whatsoever may be doubtful in Religion, yet

this at least is certain, that no Religion, which

| believe not to be true, can be either true, or

profitable unto me. In vain therefore do

Princes compel their Subjects to come into

their Church-communion, under pretence of

saving their Souls. * * * [W]hen all is done,

they must be left to their own Consciences.

John Locke, A Letter Concerning Toleration 38 (James

H. Tully ed., Hackett Publ’g Co. 1983) (1689). Based

on this understanding and the related concern that so-

cial division and bloodshed often follow when govern-

ment takes positions on matters of faith, Locke rea-

soned that “civil government” should not “interfere

with matters of religion except to the extent necessary

to preserve civil interests.” Feldman, /ntellectual Ori-

gins, supra, at 368.

Many of our Nation’s founders took these teach-

ings to heart. Benjamin Franklin, for example, stated:

When a Religion is good, | conceive it will sup-

port itself; and when it does not support itself,

and God does not care to support [it], so that

its Professors are oblig’d to call for the help of

the Civil Power, ‘tis a Sign, I apprehend, of its

being a bad one.

Letter from Benjamin Franklin to Richard Price (Oct.

9, 1780), http://bit.ly/2)MsrVO. And James Madison

viewed governmental support for religion as “[rjeli-

gious bondage [that] shackles and debilitates the

mind and unfits it for every noble enterprize.” Letter

from James Madison to William Bradford (Apr. 1,

1774), http:/bit.ly/2h57Xm5.

c. Madison’s commitment to freedom of conscience

informed his opposition to Patrick Henry’s proposal in

1784 that Virginia fund religious education with prop-

erty taxes. See Carl H. Esbeck, Protestant Dissent and

the Virginia Disestablishment, 1776-1786, 7 Geo. J.L.

& Pub. Pol’y 51, 77-78 (2009). Madison objected that

Henry’s proposal would infringe “the equal right of

every citizen to the free exercise of his Religion accord-

ing to the dictates of conscience,” intruding on reli-

gious freedom and threatening civil governance.

James Madison, Memorial and Remonstrance Against

Religious Assessments 44 12-13, 15, reprinted in Ever-

son v. Board of Educ., 330 U.S. 1, 63-72 (1947) (appen-

dix to dissent of Rutledge, J.). Governmental support

for religion would only “weaken in those who profess

[the benefited] Religion a pious confidence in its in-

nate excellence,” while “foster[ing] in those who still

reject it, a suspicion that its friends are too conucious

of its fallacies, to trust it to its own merits.” /d. 4 6.

These principles led to the defeat of Henry’s pro-

posal and spurred adoption instead of Thomas Jeffer-

son’s Bill for Establishing Religious Freedom (see

Merrill D. Peterson, Jefferson and Religious Freedom,

Atlantic Monthly (Dec. 1994), http://theatln.tc/

2idj7Xo), the forebear of the First Amendment's Reli-

gion Clauses (see Everson, 330 U.S. at 13).

2. The Framers recognized that religious

pluralism and civil harmony require strict

neutrality in matters of religion.

a. Though the United States was more homoge-

neous in 1789 than it is today, this country has, from

the beginning, been home to unprecedented religious

diversity. Congregationalists maintained a strong-

hold in New England; Anglicans dominated religious

life in the South; and Quakers influenced society sig-

nificantly in Pennsylvania. See Akhil Reed Amar, The

Bill of Rights: Creation and Reconstruction 45 (1998);

Winthrop S. Hudson, Religion in America 46 (3d ed.

1981).

The Framers knew that “[t]he centuries immedi-

ately before and contemporaneous with the coloniza-

tion of America had been filled with turmoil, civil

strife, and persecutions, generated in large part by es-

tablished sects determined to maintain their absolute

political and religious supremacy.” Everson, 330 U.S.

at 8-9. Religious pluralism thus represented not just

a greai national strength but also a profound threat

to civil peace. And the Framers recognized separation

of religion and government as the antidote to the lat-

ter.

Roger Williams, for example, had made the case

against using the tools of the state to promote religion

even to the slightest degree, because official religious

favoritism inevitably leads to “persecution for cause of

conscience” that breaches the “express command of

God that peace be kept.” Williams, The Bloudy Tenent,

supra, at 59, 61. And Locke, “[w]riting in the after-

math of religious turmoil in England and throughout

Europe,” had recognized “the tendency of both reli-

gious and governmental leaders to overstep their

bounds and intermeddle in the others’ province,” pro-

ducing civil strife. Michael W. McConnell, The Origins

and Historical Understanding of Free Exercise of Re-

ligion, 103 Harv. L. Rev. 1409, 1431-1432 (1990).

Locke had argued, therefore, that separation was a

prerequisite to lasting peace. /bid.; see also Feldman,

Intellectual Origins, supra, at 368.

The Framers thus well understood that they were

creating a government for a diverse group of people

and faiths (see Jon Meacham, American Gospel: God,

the Founding Fathers, and the Making of a Nation 101

(2006)) and that religious liberty for all would neces-

sarily require accommodation of religious pluralism

(see John Witte Jr., Religion and the American Con-

stitutional Experiment 45 (2d ed. 2005) (citing The

Federalist Nos. 10, 51 (James Madison))). Cf.

McConnell, supra, at 1513, 1516 (arguing that Free

Exercise Clause was product of, and protection for, re-

ligious pluralism).

b. It was against this philosophical and political

backdrop—aincluding the lived experience of persecu-

tion of Baptists and other religious dissenters at the

hands of the established Anglican church (see Andy G.

Olree, “Pride Ignorance and Knavery”: James Madi-

son's Formative Experiences with Religious Establish-

ments, 36 Harv. '.L. & Pub. Pol’y 211, 215, 226-227,

266-267 (2013))}—that Virginia enacted Jefferson's

Bill for Establishing Religious Freedom, which forth-

rightly declared it an “impious presumption of legisla-

tors and rulers, civil as well as ecclesiastical, * * * [to]

assume|] dominion over the faith of others, setting up

their own opinions and modes of thinking as the only

true and infallible, and as such endeavouring to im-

pose them on others.” Thomas Jefferson, The Virginia

Statute for Establishing Religious Freedom (Jan. 16,

1786), reprinted in Founding the Republic: A Docu-

mentary History 94 (John J. Patrick ed., 1995).

Or as Madison put it, “experience witnesseth that

ecclesiastical establishments, instead of maintaining

the purity and efficacy of Religion, have had a con-

trary operation. * * * What have been [their] fruits?

More or less in all places, pride and indolence in the

Clergy; ignorance and servility in the laity; in both,

superstition, bigotry and persecution.” Madison, Me-

morial and Remonstrance {% 7.

In short, the Virginia statute embodied the belief

that religi m neither requires nor benefits from the

support of government: “truth is great and will prevail

if left to herself.” Jefferson, Virginia Statute, supra, at

95. And it conveyed the understanding that even mod-

est, seemingly benign governmental favoritism influ-

ences individual religious practice and pressures

clergy, houses of worship, and denominations to con-

form their teachings to the predilections of bureau-

crats. See id. at 94-95 (official support in any measure

“tends only to corrupt the principles of that very Reli-

gion it is meant to encourage, by bribing with a mo-

nopoly of worldly honours and emoluments, those who

will externally profess and conform to it”).

c. “[T]he provisions of the First Amendment, in

the drafting and adoption of which Madison and Jef-

ferson played such leading roles, had the same objec-

tive and were intended to provide the same protection

against governmental intrusion on religious liberty as

the Virginia statute.” Everson, 330 U.S. at 13 (citing

Reynolds v. United States, 98 U.S. 145, 164 (1878);

Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871); Davis

v. Beason, 133 U.S. 333, 342 (1890)). Jefferson and

Madison’s vision, premised on a commitment to robust

freedom of conscience, defined the original under-

standing of the Establishment Clause. See, e.g., Ho-

sanna-Tabor Evangelical Lutheran Church & Sch. v.

EEOC, 565 U.S. 171, 183-184 (2012) (identifying Mad-

ison as “the leading architect of the religion clauses”);

Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S.

125, 166 (2011) (same); Walz v. Tax Comm'n, 397 U.S.

664, 705-706 (1970) (same); Flast v. Cohen, 392 U.S.

83, 103 (1968) (same). “[T]he Virginia struggle for re-

ligious liberty thus became warp and woof of our con-

stitutional tradition, not simply by the course of his-

tory, but by the common unifying force of Madison’s

life, thought and sponsorship.” Everson, 330 U.S. at

39 (Rutledge, J., dissenting).

In recognition “that a union of government and re-

ligion tends to destroy government and to degrade re-

ligion” (Engel, 370 U.S. at 431 (1962)), “the First

Amendment rests upon the premise that both religion

and government can best work to achieve their lofty

aims if each is left free from the other within its re-

spective sphere” (/llinois ex rel. McCollum v. Board of

Educ., 333 U.S. 203, 212 (1948); accord Letter from

James Madison to Edward Livingston, supra). The Es-

tablishment Clause embodies Madison and Jefferson’s

“plan of preserving religious liberty to the fullest ex-

tent possible in a pluralistic society.” McCreary, 545

U.S. at 882 (O'Connor, J., concurring). It “stands as an

expression of principle on the part of the Founders of

our Constitution that religion is too personal, too sa-

cred, too holy, to permit its ‘unhallowed perversicn’ by

a civil magistrate” (Engel, 370 U.S. at 432)—perver-

sion that occurs when a faith is favored as much as

when one is disfavored (see Lee v. Weisman, 505 U.S.

577, 608 (1992) (Blackmun, J., concurring) (“The fa-

vored religion may be compromised as political figures

reshape the religion’s beliefs for their own purposes;

it may be reformed as government largesse brings

government regulation.”)).

d. The Framers intended not only to protect “the

freedom of the individual to worship in his own way,”

but also to guard against “anguish, hardship and bit-

ter strife that could come when zealous religious

groups struggled with one another to obtain the Gov-

ernment’s stamp of approval.” Engel, 370 U.S. at 429.

Hence, the Religion Clauses were designed to “as-

sure the fullest possible scope of religious liberty and

tolerance for all,” which was understood to be the only

way “to avoid that divisiveness based upon religion

that promotes social conflict, sapping the strength of

government and religion alike.” Van Orden v. Perry,

545 U.S. 677, 698 (2005) (Breyer, J., concurring).

As our Nation becomes increasingly religiously di-

verse, the dangers of division become more serious,

not less. And hence, the antidote that the Framers

prescribed—the safeguarding of the fundamental

freedom for all to believe and worship, or not, accord-

ing the dictates of conscience, without influence or in-

terference from government—becomes ever more im-

portant.

B. The Counties’ Cross Display Intrudes On

Religious Freedom.

1. The Latin cross is an unmistakable and

potent symbol of Christianity.

a. Symbols have power. They communicate com-

plex ideas, often more effectively and more forcefully

than mere words. “The use of an emblem or flag to

symbolize some system, idea, institution, or personal-

ity, is a short cut from mind to mind.” West Va. Bd. of

Educ. v. Barnette, 319 U.S. 624, 632 (1943). Symbols

“attract public notice, they are remembered for dec-

ades or even centuries afterwards,” and they “speak[]

directly to the heart” as well as the head. Nicholas

Jackson O’Shaughnessy, Politics and Propaganda 102

(2004). That is why “[c]auses and nations, political

parties, lodges and ecclesiastical groups seek to knit

the loyalty of their followings to a flag or banner, a

color or design.” Barnette, 319 U.S. at 632; cf. Texas v.

Johnson, 491 U.S. 397, 405 (1989) (“Pregnant with ex-

pressive content, the flag as readily signifies this Na-

tion as does the combination of letters found in ‘Amer-

ica.”).

What is true for symbols generally is especially so

for religious ones, which may convey at a glance mil-

lennia of collective experience, hope, and triumph to

those who hold them dear—and at times the opposite

messages to those who do not.

b. Perhaps no symbol is more universally familiar,

or more laden with meaning, than the Latin cross.

See, e.g., Alister E. McGrath, Christianity: An Intro-

duction 256-257 (3d ed. 2015). Since the earliest days

of Christianity, “[t]he cross has been the universally

acknowledged symbol of the Christian faith.” /d. at

256.

It achieved special prominence beginning in the

fourth century, when the Roman Emperor Constan-

tine adopted Christianity for the Empire (Bruce W.

Longenecker, The Cross Before Constantine: The

Early Life of a Christian Symbol 2-5, 11 (2015)) and

began using the cross “as protection against the at-

tacks of the enemy” (Eusebius, Life of Constantine

1:29 (Averil Cameron & Stuart G. Hall trans. 1999)

(early Church historian’s description of Constantine’s

vision and dream leading to use of cross)).

The cross has been consistently and unequivocally

associated with Christianity ever since. See McGrath,

supra, at 256. It was the primary symbol used during

the Crusades to distinguish the crusaders from oppos-

ing forces. See Jonathan Riley-Smith, The Crusades:

A History 16 (2d ed. 2005). And it was vitally im-

portant to Medieval and Renaissance art, when “the

painted picture was invaluable as an interpreter and

exponent of religious truths,” because the cross visu-

ally communicated the Church’s message of redemp-

tion. George Willard Benson, The Cross: Its History

and Symbolism 121, 136 (1934). Thus, countless por-

trayals of Jesus’ death included the cross, not just as

representational art, but to disseminate Church doc-

trine. See McGrath, supra, at 257. For similar rea-

sons, crosses have historically adorned and been de-

sign elements for churches, inside and out. See Rich-

ard Taylor, How to Read a Church: A Guide to Sym-

bols and Images in Churches and Cathedrals 39

(2003).

Pope Francis has explained: “The Christian Cross

is not something to hang in the house ‘to tie the room

together * * * or an ornament to wear, but a call to

that love, with which Jesus sacrificed Himself to save

humanity from sin and evil.” Pope Francis: The Cross

Is the Gate of Salvation, Catholic News (Mar. 12,

2017), http://bit.ly/2CLyEqE; cf. U.S. Conference of

Catholic Bishops, Built of Living Stones: Art, Architec-

ture, and Worship § 91 (2000) (“[T]he image of Christ

crucified * * * makes tangible our belief that our suf-

fering when united with the passion and death of

Christ leads to redemption.”).

In short, the cross is not merely a symbol of Chris-

tianity; it is the symbol. See McGrath, supra, at 256;

Douglas Keister, Stories in Stone: A Field Guide to

Cemetery Symbolism and Iconography 172 (2004); see

also Salazar, 559 U.S. at 725 (2010) (Alito, J., concur-

ring in part and concurring in the judgment) (“The

cross is of course the preeminent symbol of Christian-

ity.”). It is a “pure religious object” (Frank S. Ravitch,

Religious Objects as Legal Subjects, 40 Wake Forest

L. Rev. 1011, 1023-1024 (2005)) that serves as the

physical embodiment of Christian tenets of resurrec-

tion and redemption.

2. The counties’ cross display constitutes

official religious favoritism.

a. As the court of appeals recognized, the invoca-

tion of Jesus’ death and Christian doctrine is precisely

why crosses are used to honor the dead—Christian

dead. See American Legion Pet. App. 18a (“[T]he

Latin cross * * * only holds value as a symbol of death

and resurrection because of its affiliation with the cru-

cifixion of Jesus Christ.”); accord, e.g., American Athe-

ists, Inc. v. Duncan, 616 F.3d 1145, 1159-1160 (10th

Cir. 2010). “All the secondary meanings to which the

cross has been put are derived from, and dependent

on,” its primary message “that the son of God died on

the cross to redeem the sins of humankind, that he

rose from the dead, and that those who believe in him

will also rise from the dead and have eternal life.”

Douglas Laycock, Government-Sponsored Religious

Displays: Transparent Rationalizations and Expedi-

ent Post-Modernism, 61 Case W. Res. L. Rev. 1211,

1239 (2011).

b. It is therefore entirely understandable that pri-

vate citizens in Prince George’s County and then the

American Legion, also a private group, chose to erect

a Latin cross. For them, the cross, with its deep layers

of spiritual meaning, served two distinct but mutually

reinforcing ends: It allowed them to commemorate the

life, death, honor, and sacrifice of soldiers presumed

to be Christian. And it simultaneously provided a ve-

hicle to honor the group members’ own faith and to

pledge themselves collectively to a spiritual path that

they regarded as righteous.

Thus, the original organizers required donors to

declare the existence of “ONE GOD” and pledge to fol-

low the “SPIRIT” of the fallen soldiers to “GUIDE US

THROUGH LIFE IN THE WAY OF GODLINESS,

JUSTICE AND LIBERTY.” J.A. 36. And in the hands

of the American Legion, the cross was dedicated in a

ceremony replete with Christian prayers led by Chris-

tian clergy. J.A. 1130.

In short, the Bladensburg Cross has, since its in-

ception, been a monument to the Christian faith as

much as to the 49 listed individuals.

c. No one disputes that these private groups had

the right to use the Latin cross as a tribute to their

own faith and to Christian dead. The question here is

whether Montgomery and Prince George’s Counties

were permitted to make that same choice when they

acquired the cross in 1961 (J.A. 91), rededicated it in

1985 to all veterans (J.A. 1271-1278, 1281), and main-

tained it as an official tribute to all veterans ever

since. The answer to that question is a resounding

“no” under settled legal doctrine, for the reasons that

the court of appeals explained. The result is also the

right one given the fundamental principles on which

the Framers built the First Amendment’s protections

for religious freedom.

In World War I, and in all wars before and since,

people of many faiths, and people of no particular

faith, fought and died for our country. The Christian

lives lost are deserving of respect, gratitude, and re-

membrance. But they are not more worthy than the

lives, deaths, and sacrifices of the many non-Chris-

tians who served beside them.

Yet that is precisely the message that the counties

have sent, intentionally or not, by adopting, dedicat-

ing, and maintaining a towering Latin cross as their

official tribute to veterans and war dead. “[A] memo-

rial Cross is not a generic symbol of death; it is a

Christian symbol of death that signifies or memorial-

izes the death of a Christian.” Duncan, 616 F.3d at

1161 (emphasis in original). Hence, “the use of exclu-

sively Christian symbolism in a memorial would * * *

‘lead observers to believe that the [government] has

chosen to honor only Christian veterans.” Trunk v.

City of San Diego, 629 F.3d 1099, 1112 (9th Cir. 2011)

(quoting Separation of Church & State Comm. v. City

of Eugene, 93 F.3d 617, 626 (9th Cir. 1996)

(O’Scannilain, J., concurring)).

By displaying the preeminent symbol of Christi-

anity, the counties have conveyed the exclusionary

message that Bladensburg is a Christian community

in which those who don’t share the Christian faith

simply do not belong. They have declared who mat-

ters; who is a “real” American; who is one of “us.” And

who isn’t.

The harm of that message is more than theoreti-

cal: Empirical research confirms that religious sym-

bols have real, measurable effects on adherents and

nonadherents alike, even when the symbols are dis-

played with no intent to proselytize or coerce. Viewing

religious symbols, for example, has statistically signif-

icant effects on students’ academic performance. Re-

searchers found in controlled experiments that Cath-

olic-school students did systematically better on

stendardized tests when the examiner wore a cross

and systematically worse when the examiner wore a

Star of David. See Philip A. Saigh, Religious Symbols

and the WISC-R Performance of Roman Catholic Jun-

ior High School Students, 147 J. Genetic Psychol. 417,

417-418 (1986). And both Christian and Muslim stu-

dents scored better than expected when the examiner

wore a symbol of their faith and worse than expected

when the examiner wore a symbol of the other faith.

Philip A. Saigh, The Effect of Perceived Examiner Re-

ligion on the Digit Span Performance of Lebanese Ele-

mentary Schoolchildren, 109 J. Soc. Psychol. 167, 168-

170 (1979).

These effects are not limited to children. Research

has also revealed that exposure to religious symbols

that adult test subjects viewed as negative (such as an

inverted pentagram) suppressed brain activity, while

exposure to religious symbols that the subjects re-

garded as positive (such as a dove) had no deleterious

effects. See Kyle D. Johnson et al., Pilot Study of the

Effect of Religious Symbols on Brain Function: Associ-

ation with Measures of Religiosity, | Spirituality in

Clinical Practice 82, 82, 84 (2014), http://bit.ly/

2ifUo4M.

d.The counties contend, however, that the

Bladensburg cross is not exclusionary because it has

always been “understood * * * as a memorial to veter-

ans and the fallen of every faith.” Counties’ Cert. Re-

ply Br. 4. But employing the preeminent symbol of

Christianity to represent all veterans disregards non-

Christian veterans’ and their families’ actual faiths

and beliefs, imposing on them all the deep theological!

commitments of the Latin cross.

The counties’ contention is also irreconcilable with

the facts on the ground, both when the private monu-

ment was planned and today. “More than 3,500 Jew-

ish soldiers gave their lives for the United States in

World War |.” Salazar, 559 U.S. at 726 (Alito, J., con-

curring in part and concurring in the judgment). So

while it is certainly true that ranks of overseas graves

from that war bear headstones in the form of white

crosses, the headstones of Jewish soldiers are instead

white Stars of David. /bid. And when, around the end

of World War I (and the private groups’ commence-

ment of the Bladensburg Cross project), the United

States first began officially allowing religious symbols

on military headstones, it likewise did not impose

crosses on Jewish soldiers but instead authorized the

use of Stars of David. See Sara Amy Leach, World War

I Veterans and Their Federal Burial Benefits, 41:4

AGS Q.: Bull. Ass’n for Gravestone Studies 36, 36-37

(2017), https://bit.ly/2CdBu7w.

Today, given the amazing diversity of faiths in the

nation and its armed forces, the United States Depart-

ment of Veterans Affairs appropriately makes availa-

ble for use on government-furnished headstones more

than 70 “emblems of belief’—including many different

types of crosses, the Jewish Star of David, the Hindu

Om, the Baha’i nine-pointed star, the Muslim crescent

and star, the Druid Awen, the Sikh Khanda, the Bud-

dhist Wheel of Righteousness, several Native Ameri-

can religious symbols, the Wiccan pentacle, and an

atomic whirl for atheists. See Available Emblems of

Belief for Placement on Government Headstones and

Markers, U.S. Dep’t of Veterans Affairs, Nat'l Ceme-

tery Admin., https://bit.ly/2ydVtE3. And the Depart-

ment provides a relatively simple mechanism for add-

ing other religious symbols, so that no family is sub-

jected to the indignity and spiritual harm of having

the government bury a loved one under a religious

symbol that does not reflect, and may be contrary to,

the family’s faith. See 38 C.F.R. 632. No one religious

symbol is used to honor and represent all servicemem-

bers because no one religious symbol can represent

them all.

America’s fallen soldiers and the sacrifices that

they and their families have made are all worthy of

remembrance and recognition. Rather than commem-

orate only Christian soldiers through a misguided use

of the cross, government ought to acknowledge the

equal worth, equal dignity, and equal sacrifice of all

who gave their lives in service to our Nation.

e. What is more, many people who see the

Bladensburg Cross today will simply have no idea

that it was a war memorial, whether to the 49 listed

individuals or to all veterans. But they certainly un-

derstand it to be government-sponsored. Sandwiched

between busy thoroughfares on public land, its in-

scription obscured by hedges, most who pass by see

only a towering, lighted symbol of Christianity pro-

claiming the religious identity of the community.

To many—including the Jews, Muslims, Hindus,

Sikhs, Buddhists, nonbelievers, and others who live in

Maryland—this prominent official display does pre-

cisely what the counties here deny: It communicates a

strong message of preference for Christians and exclu-

sion and second-class status for non-Christians. That

message is not just wrong but dangerous, for “nothing

does a better job of roiling society” than “when the gov-

ernment weighs in on one side of religious debate.”

McCreary, 545 U.S. at 876.

* * *

The Establishment Clause mandates that “reli-

gious belief is irrelevant to every citizen’s standing in

the political community.” Lee, 505 U.S. at 627 (Souter,

J., concurring). And it recognizes that “[vjoluntary re-

ligious belief and expression may be as threatened

when government takes the mantle of religion upon

itself as when government directly interferes with pri-

vate religious practices.” McCreary, 545 U.S. at 883

(O’Connor, J., concurring). The counties’ cross display

cannot be squared with those precepts or with the es-

sential protections for freedom of conscience that they

embody. It is a massive concrete thumb on the scale

in favor of a preferred set of religious beliefs, im-

properly and harmfully defining political in- and out-

groups.

C. The Legal Tests Advocated By Those Seek-

ing To Uphold The Official Cross Display

Fall Far Short Of The Original Guarantees

Of The First Amendment.

Petitioner American Legion and many of petition-

ers’ amici argue not just that the counties’ towering

Latin cross should be preserved, but also that the

Court should use this occasion to rewrite long-stand-

ing, well-settled First Amendment jurisprudence to

sanction all sorts of denominational favoritism and

governmental support for religion.

Some contend that the Establishment Clause

should bar only formal legal coercion—such as fines or

imprisonment for failure to participate in official reli-

gious exercises. See, e.g., American Legion Br. 24-40;

U.S. Amicus Br. 13-23; Cato Institute Amicus Br. 8-9.

Others proffer what they describe as a historical ap-

proach, under which any governmental promotion of

religion that might have occurred anywhere when the

First Amendment was adopted ought to be treated as

constitutionally licensed—or, even more aggressively,

that any acts that the Framers did not specifically

identify as barred are therefore permitted. See, e.g.,

Liberty Counsel Amicus Br. 39-42; Utah Highway Pa-

trol Ass’n Amicus Br. 6-22. Still others suggest that

governmental sponsorship of religion should be con-

stitutionally permissible merely because it has been

occurring for a long time without precipitating a legal

challenge or public outcry. See, e.g., West Virginia

Amicus Br. 2-3, 7-10.

None of these alternatives is consistent with the

Framers’ fundamental commitment to religious free-

dom for all.

1. Anarrow focus on legal coercion would al-

low official favoritism to degrade religious

freedom and render the Establishment

Clause superfluous.

a. A test that reinterpreted the Establishment

Clause to bar only formal legal coercion cannot be

squared with the “clearest command * * * that one re-

ligious denomination cannot be officially preferred

over another” (Larson, 456 U.S. at 244),° or the ani-

mating principle that favoritism corrupts religion and

compromises religious freedom (see Section A., supra).

As this Court has explained, the Establishment

Clause was meant to recognize that when government

acts as a “mouthpiece for competing religious ideas”

(McCreary, 545 U.S. at 883) it distorts and degrades

religion and infringes religious freedom. Thus, “the

government must not align itself with any [religion]”

but instead should “make room for as wide a variety

of beliefs and creeds as the spiritual needs of man

deem necessary.” Lee, 505 U.S. at 608 (Blackmun, J.,

concurring) (quoting Zorach v. Clauson, 343 U.S. 306,

313 (1952)). The Framers therefore designed a system

in which “preservation and transmission of religious

beliefs and worship is a responsibility and a choice

committed to the private sphere, which itself is prom-

ised freedom to pursue that mission.” Lee, 505 U.S. at

589; see also Zorach, 343 U.S. at 313 (We sponsor an

attitude on the part of government that * * * lets each

[religion] flourish according to the zeal of its adher-

ents and the appeal of its dogma.”).

A legal-coercion-only test simply would not ad-

dress these core concerns of the Establishment

Clause. See County of Allegheny v. ACLU Greater

Pittsburgh Chapter, 492 U.S. 573, 627-628 (1989)

(O'Connor, J., concurring in part and concurring in

the judgment) (‘An Establishment Clause standard

that prohibits only ‘coercive’ practices or overt efforts

8 Accord, e.g., Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819, 860-861 (1995) (Thomas, J., concurring in the judg-

ment); Bowen v. Kendrick, 487 U.S. 589, 607-608 (1988); Ed-

wards v. Aguillard, 482 U.S. 578, 616 (1987) (Scalia, J., dissent-

ing) (governmental ‘neutrality’ toward religion is the preem-

nent goal of the First Amendment’).

at government proselytization * * * would not * * * ad-

equately protect the religious liberty or respect the re-

ligious diversity of the members of our pluralistic po-

litical community.”); id. at 660-661 (Kennedy, J , con-

curring in part and dissenting in part) (recogizing

that a “direct coercion” test would allow some wacon-

stitutional “[s]ymbolic recognition” of a faith).

Indeed, this Court considered and rejected just

such a narrow legal-coercion test in Lee, after detailed

questioning of the petitioners’ counsel about what

that test would license.‘ When asked whether, under

the test, a state legislature could pass a resolution

naming a particular religion as the state religion, “like

they might pass a resolution saying the bolo tie is the

State necktie,” counsel answered in the affirmative.

Tr. of Oral Arg. at 13-14, Lee v. Weisman, 505 U.S. 577

(1992) (No. 90-1014). Counsel also stated that the test

would not prohibit this Court from opening its ses-

sions with “Jesus Christ save the United States and

this Honorable Court” or the U.S. Mint from stamping

“In Jesus Christ We Trust” on our money. /d. at 12-

13. Nor, presumably, would the test bar “the perma-

nent erection of a large Latin cross on the roof of city

hall” or a public schoolhouse. Allegheny, 492 U.S. at

661 (Kennedy, J., concurring in part and dissenting in

part). Amici do not believe that anyone seriously sup-

poses the First Amendment to allow a country full of

towns erecting monuments to their preferred faiths

and denominations—and town halls consumed by

heated debates over which to favor.

As Justice Scalia straightforwardly observed dur-

ing the oral argument in Lee, a legal-coercion-only test

* Counsel of record for the American Legion here, Mr. Carvin,

was cocounsel for the petitioners in Lee.

“just [does not] comport[] with our tradition.” Tr. of

Oral Arg. at 12, Lee v. Weisman, 505 U.S. 577 (1992)

(No. 90-1014).

b. A legal-coercion-only test would also violate the

canons of constitutional interpretation.

There can be no doubt that the Free Exercise

Clause prevents government from compelling partici-

pation in unwanted religious exercises; that is the

very heart of the free-exercise guarantee. See, e.g.,

Abington Sch. Dist. v. Schempp, 374 U.S. 203, 223

(1963) (“[I]t is necessary in a free exercise case for one

to show the coercive effect of the enactment as it oper-

ates against him in the practice of his religion.”).

While there is certainly overlap in the prohibi-

tions and protections of the Establishment and Free

Exercise Clauses (see, e.g., Engel, 370 U.S. at 430;

Board of Educ. v. Grumet, 512 U.S. 687, 715 (1994)

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

the judgment)), reading the Establishment Clause to

bar only legal coercion would make it duplicative of

the Free Exercise Clause (see Lee, 505 1’ S. at 621

(Souter, J., concurring) (“[A] literal application of the

coercion test would render the Establishment Clause

a virtual nullity”); Allegheny, 492 U.S. at 628 (O’Con-

nor, J., concurring in part and concurring in the judg-

ment); Schempp, 374 U.S. at 223 (“The distinction be-

tween the two clauses is apparent—a violation of the

Free Exercise Clause is predicated on coercion while

the Establishment Clause violation need not be so at-

tended.”)). It would thus impermissibly render the Es-

tablishment Clause mere surplusage. Cf. District of

Columbia v. Heller, 554 U.S. 570, 643 (2008) (“It can-

not be presumed that any clause in the constitution is

intended to be without effect”) (quoting Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 174 (1803)).

2. A test limited to considering practices at

the time of ratification would be empty.

The attempt to make some version of the histori-

cal approach of Marsh v. Chambers, 463 U.S. 783

(1983), and Town of Greece v. Galloway, 572 U.S. 565

(2014), the only mode of permissible analysis provides

no guidance for deciding most cases that arise under

the Establishment Clause.

a. In Marsh, this Court upheld legislative prayer

based primarily on congressional intent reflected in

the “unique,” “unambiguous” historical fact that the

First Congress voted to hire legislative chaplains the

same week that it approved the First Amendment.

463 U.S. at 787-788, 791-792. And in Greece, the Court

upheld a town board’s prayer practice as consistent

with the specific tradition identified in Marsh. 572

U.S. at 577, 584. The Court explained in Greece that

the Establishment Clause should be interpreted with

“historical practices and understandings” in mind, not

to posit that history is all that matters, but to illumi-

nate the mandate of the Court’s preceding sentence,

which directs that “Marsh must not be understood as

permitting a practice that would amount to a consti-

tutional violation if not for its historical foundation.”

Id. at 576.

Thus, the Court recognized, bedrock antiestab-

lishment principles barring denominational! prefer-

ences and religious coercion retain their legal force

(see Greece, 572 U.S. at 586, 589), whatever historical

practice might have been (see id. at 576). For “no one

acquires a vested or protected right in violation of the

Constitution by long use, even when that span of time

covers our entire national existence and indeed pre-

dates it.” Marsh, 463 U.S. at 790 (quoting Walz, 397

U.S. at 678).

b. The attempt to employ a historical approach as

the exclusive test for official conduct under the Estab-

lishment Clause also makes little sense either histor-

ically or practically.

As an initial matter, the Establishment Clause

was not applied to the states until after incorporation

through the Fourteenth Amendment in 1943. See

Everson, 330 U.S. at 8 (citing Murdock v. Pennsylva-

nia, 319 U.S. 105, 108 (1943)). Accordingly, what

states and local governments might have been doing

during the founding era is “irrelevant.” Allegheny, 492

U.S. at 670 n.7 (Kennedy, J., concurring in part and

dissenting in part). Established state churches per-

sisted decades after the Bill of Rights was ratified.

See, e.g., Mass. Const. amend. XI (disestablishment in

1833); Daniel O. Conkle, Toward a General Theory of

the Establishment Clause, 82 Nw. U. L. Rev. 1113,

1132 & nn.97-98 (1988). Yet this Court has never sug-

gested that state churches are therefore constitution-

ally permissible.

Additionally, as far as amici have been able to dis-

cern, no crosses were being erected on the mostly non-

existent federal lands at the founding. Nor would the

Framers have been thinking about states’ doing so,

because that doesn’t appear to have been happening

either. See, e.g., Trunk, 629 F.3d at 1112-1114 (detail-

ing historical rarity of crosses as war memorials). And

nothing in the submissions of petitioners or their

amici genuinely suggests otherwise.

More generally, “[t]here were only a few conflicts

between law and religious practice in the founding

era. Governments were small and the nation was

overwhelmingly Protestant.” Douglas Laycock, Reli-

gious Liberty and the Culture Wars, 2014 U. Ill. L.

Rev. 839, 842 (2014). The Framers thus had no reason

to consider the many issues concerning government

and religion today. To infer constitutionality from the

failure to name as violations specific actions that the

Framers likely never imagined government would

presume to undertake would license official conduct

that this Court has consistently and unequivocally

held to be barred.

Most obviously, public schools were “virtually

nonexistent” at the founding. Wallace v. Jaffree, 472

U.S. 38, 80 (1985) (O’Connor, J., concurring in the

judgment). They arose well after the First Amend-

ment was ratified. See, e.g., 1 A Cyclopedia of Educa-

tion 418 (Paul Monroe ed. 1915) (first public high

school in America established in Boston in 1821). And

they were slow to proliferate. See Schempp, 374 U.S.

at 238 n.7 (“[T]he burgeoning public school systems

did not immediately supplant the old sectarian and

private institutions; Alexis de Tocqueville, for exam-

ple, remarked after his tour of the Eastern States in

1831 that ‘{a]lmost all education is entrusted to the

clergy.” (quoting 1 Alexis de Tocqueville, Democracy

in America 309 n.4 (Bradley ed. 1945))).

“Since there then existed few [or no] government-

run schools, it is unlikely that the persons who drafted

the First Amendment, or the state legislators who rat-

ified it, anticipated the problems of interaction of

church and state in the public schools.” See Lee, 505

U.S. at 635 (Scalia, J., dissenting). Yet this Court has

long and consistently recognized that official prayer,

proselytization, and religious indoctrination in public

schools are forbidden. See, e.g., Edwards, 482 U.S. 578

(1987) (holding unconstitutional state law prohibiting

teaching of evolution unless accompanied by lessons

on creationism); Wallace, 472 U.S. 38 (holdiig uncon-

stitutional state laws promoting teacher-led prayer);

Epperson, 393 U.S. 97 (holding unconstitutional state

law prohibiting teaching of evolution); Schempp, 374

U.S. 203 (holding unconstitutional state law requiring

public schools to begin each day with prayer and Bible

verses); Engel, 370 U.S. 421 (holding unconstitutional

school district’s requirement to open school day with

prayers).

And the modern administrative state is, of course,

modern. See, e.g., Hosanna-Tabor, 565 U.S. at 185 (ac-

knowledging “absence of government employment

regulation generally” in historical record); cf. Alle-

gheny, 492 U.S. at 657-658 (Kennedy, J., concurring

in part and dissenting in part) (noting that expansion

of administrative state in twentieth century has com-

plicated issues of law and religion). Not only were fed-

eral and state offices uninvolved during the early

years in raising relegious monuments, but they did not

do much else either. Yet this Court has never held the

Establishment Clause inapplicable to administrative

agencies. Quite the contrary. See, e.g., Witters v.

Washington Dep't of Servs. for the Blind, 474 U.S. 481

(1986) (state agency); Walz, 397 U.S. 664 (local tax

commission); Flast, 392 U.S. 83 (federal administra-

tive action).

Concluding from early governmental silence and

inaction that the Establishment Clause permits offi-

cial promotion of religion stands the logic of Marsh

and Greece on its head: It creates a constitutional per-

mission slip to promote religion and a favored faith

based not on affirmative congressional action contem-

poraneous with adoption of the First Amendment, but

on the negative inference that because the Framers

did not encounter particular forms of religious favor-

itism and promotion that exist today, the practices are

therefore permitted.

3. The absence of past challenges to an act of

religious favoritism does not alone show

lack of cognizable harm.

Finally, some suggest that official promotion of a

particular faith or of religion generally should earn

constitutional license if the conduct—or, perhaps,

some other example of that conduct elsewhere—was

of long duration without previously sparking lawsuits

or other substantial public outcry.

To be sure, avoidance of divisiveness along reli-

gious lines is a central concern of the Establishment

Clause. See Section A, supra. But to assume that the

absence of open civil strife means that there is no con-

stitutionally cognizable interest at stake is to ignore

the real, substantial threats and harms that citizens

face when they stand against official religious favorit-

ism and promotion.

That no one at an earlier time may have protested

or sued over the counties’ huge Latin cross here, or

certain other cross displays, is entirely understanda-

ble—not because duration proves that no one genu-

inely cares, but because the dangers of speaking up

suppress dissent. “Suing a State over religion puts

nothing in a plaintiffs pocket and can take a great

deal out, and even with volunteer litigators to supply

time and energy, the risk of social ostracism can be

powerfully deterrent.” Van Orden, 545 U.S. at 747

(Souter, J., dissenting).

This Court’s own cases illustrate the point:

e In McCollum, Vashti McCollum received hun-

dreds of pieces of hate mail, her house was

vandalized, and her son was physically at-

tacked because of her challenge to religious in-

struction in the child’s public school. See Rob-

ert S. Alley, Without a Prayer: Religious Ex-

pression in Public Schools 86-87 (1996).

« In Schempp, children of a plaintiff were

beaten and their home was firebombed over a

challenge to official prayer and Bible reading

in a public school. Alley, supra, at 98.

« The “emotional scars” suffered by the plaintiff

who challenged the créche in Lynch went so

deep that he resolved never again to “take a

stand for a controversial belief that clashed

with mainstream public opinion.” Wayne R.

Swanson, The Christ Child Goes to Court 21

(1990).

« In Santa Fe, the district court allowed the

plaintiffs to proceed anonymously in their

challenge to official prayer at public-school

football games after they received threats and

their children were intimidated and as-

saulted; and the court took added measures to

safeguard the children when school officials

and others tried to ascertain the Doe plain-

tiffs’ identities. Tr. of Oral Arg. at 29-30,

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

(2000) (No. 99-62). Even non-plaintiff parents

who had voiced support fer the challenge re.

portedly removed their children from schoo!

out of fear for their safety. /d. at 30.

in the lower courts, examples are legion:

« When Kay Staley sued over a Bible monument

at a Houston courthouse, she received dozens

of harassing communications and multiple

graphic threats of sexual violence. Se Appel-

lant’s Br. at 57, Staley v. Harris County, 461

F.3d 504 (5th Cir. 2006) (No. 04-20667).

When other students at a New Jersey high

school mistakenly assumed that the two Jew-

ish girls on the cheerleading squad had com-

plained about coach-led prayers, they were

bullied and harassed both in person and

through voluminous anti-Semitic and sex-

ually graphic threats on the school’s electronic

bulletin board. See Borden v. School Dist., 523

F.3d 153, 184 (3d Cir. 2008) (McKee, J., con-

curring).

When Darla Wynne challenged a South Caro-

lina town’s discriminatory prayer practice in

Wynne v. Town of Great Falls, 376 F.3d 292

(4th Cir. 2004), she was victim to home inva-

sions and her pets were beaten and murdered.

S.C. Prayer Plaintiff Faces Wrath of Commu-

nity Over Lawsuit, Church & State (Nov.

2004), http://tinyurl.com/zka3n6r. In one inci-

dent, her home was broken into and her pet

parrot beheaded, its body left with a note

warning, “You're next!” /bid.

When, in Glassroth v. Moore, 335 F.3d 1282

(11th Cir. 2003), Melinda Maddox challenged

then-Chief Justice Roy Moore’s Ten Com-

mandments monument in the Alabama Judi-

cial Building, she received death threats and

had her law practice boycotted, her home, law

office, and car vandalized, and the windows of

her home shot out. Rob Boston, Plucky Lindy,

Church & State (Apr. 2004), http-//tinyur!

com/h47gja2.

« At least two plaintiffs in Kitzmiller v. Dover

Area School District, 400 F. Supp. 2d 707

(M.D. Pa. 2005), received death threats (in-

cluding one to a plaintiffs daughter) after

challenging creationism in public-school sci-

ence classes. See Lauri Lebo, The Devil in Do-

ver 213-214 (2008). So did the district judge

and his family. See, e.g., Ron Knox, Judge in

Dover LD. Case Touts Legal Independence,

Lawrence Journal-World (Sept. 27, 2006),

http://tinyurl.com/r6yol.

That citizens justifiably fear retaliation, bite their

tongues, and teach their children that they had better

go along to get along should not be taken to mean that

no one is disfavored, denigrated, or otherwise hurt by

official religious favoritism and promotion. The Reli-

gion Clauses were designed instead to prevent the

very religious oppression that also silences dissent.

See Everson, 330 U.S. at 9-13.

* . *

“The very purpose of [the] Bill of Rights was to

withdraw certain subjects from the vicissitudes of po-

litical controversy, to place them beyond the reach of

majorities and officials and to establish them as legal!

principles to be applied by the courts.” Barnette, 319

U.S. at 638. Thus, “we do not count heads before en-

forcing the First Amendment.” McCreary, 545 U.S. at

884 (O'Connor, J., concurring). And we do not let a

heckler’s veto silence assertions of constitutional

rights, even when the hecklers are in the majority. Cf.

Lee, 505 U.S. at 617-618 (Souter, J., concurring) (Es-

tablishment Clause does not countenance “official

preference for the faith with the most votes”). Our fun-

damental guarantees for religious freedom require

more.

CONCLUSION

Regardless of the counties’ intent, the Bladens-

burg Cross sends the divisive and hurtful message

that non-Christians are second-class citizens whose

sacrifices for our Nation do not count. And the re-

quests to scrap the Framers’ plan to ensure religious

freedom for all puts religious minorities, and all of us,

at risk. As Justice O’Connor put it:

At a time when we see around the world the

violent consequences of the assumption of re-

ligious authority by government, Americans

may count themselves fortunate: Our regard

for constitutional boundaries has protected us

from similar travails, while allowing private

religious exercise to flourish. * * * Those who

would renegotiate the boundaries between

church and state must therefore answer a dif-

ficult question: Why would we trade a system

that has served us so well for one that has

served others so poorly?

McCreary, 545 U.S. at 882 (O'Connor, J., concurnng

The judgment should be affirmed.

Respectfully submitted.

STEVEN M. FREEMAN

DAVID L. BARKEY

AMY FEINMAN

Anti-Defamation League

605 Third Ave.

New York, NY 10158

(212) 885-7859

SAMIR KALRA

SUHAG A. SHUKLA

Hindu American

Foundation

910 17th St. NW,

Ste. 316A

Washington, DC 20006

(202) 223-8222

ELLIOT M. MINCBERG

DIANE LAVIOLETTE

People for the American

Way Foundation

1101 15th St. NW,

Ste. 600

Washington, DC 20005

(202) 467-4999

JEFFREY |. PASEK

Cozen O'Connor

1650 Market St., 28th FI.

Philadelphia, PA 19103

(215) 665-2072

RICHARD B. KATSKEE

Counsel of Record

PATRICK GRUBEL*

Americans United for

Separation of Church

and State

1310 L St. NW, Ste. 200

Washington, DC 20005

(202) 466-3234

katskee@au.org

DANIEL MACH

HEATHER L. WEAVER

American Ciwil Liberties

Union Foundation

915 15th St. NW

Washington, DC 20005

(202) 675-2330

DEBORAH A. JEON

ACLU Foundation of

Maryland

3600 Clipper Mill Rd..,

Ste. 350

Baltimore, MD 21211

(410) 889-8555

Counsel for Amici Curiae

JANUARY 2019

' Admitted in Texas; supervised by Richard 4. Katakee of the 1).C. Har

APPENDIX

APPENDIX OF AMICI CURIAE

Americans United for Separation of Church and

State

Americans United for Separation of Church and

State is a national, nonsectarian public-interest or-

ganization that is committed to preserving the consti-

tutional principles of religious freedom and the sepa-

ration of religion and government. Americans United

represents more than 125,000 members and support-

ers nationwide. Since its founding in 1947, Americans

United has participated as a party, as counsel, or as

an amicus curiae in the leading church—state cases de-

cided by this Court and by the federal courts of ap-

peals throughout the country. Consistent with our

support for the separation of religion and government,

Americans United has long fought to uphold the guar-

antees of the First Amendment that government must

not favor, promote, or disfavor any faith or its adher-

ents.

American Civil Liberties Union and ACLU of

Maryland

The American Civil Liberties Union is a nation-

wide, nonprofit, nonpartisan organization with more

than 1.5 million members dedicated to defending the

principles of liberty and equality embodied in the Con-

stitution and the nation’s civil-rights laws. The ACLU

of Maryland is a state affiliate of the national ACLU.

For nearly a century, the ACLU has been at the fore-

front of efforts to safeguard the fundamental right to

religious liberty, including the core constitutional pro-

tections against governmental religious favoritism.

Anti-Defamation League

Anti-Defamation League is a leading anti-hate or-

ganization. Founded in 1913 in response to an esca-

lating climate of anti-Semitism and bigotry, its time-

less mission is to stop the defamation of the Jewish

people and to secure justice and fair treatment for all.

Today, ADL continues to fight all forms of hate with

the same vigor and passion. Among ADL’s core beliefs

is strict adherence to the separation of church and

state. ADL emphatically rejects the notion that the

separation principle is inimical to religion, and holds,

to the contrary, that a high wall of separation is es-

sential to the continued flourishing of religious prac-

tice and belief in America and to the protection of mi-

nority religions and their adherents.

Hadassah, the Women’s Zionist Organization of

America, Inc.

Hadassah, the Women’s Zionist Organization of

America, Inc., founded in 1912, is the largest Jewish

and women’s membership organization in the United

States, with over 300,000 Members, Associates and

supporters nationwide. While traditionally known for

its role in developing and supporting healthcare and

other initiatives in Israel, Hadassah has a proud his-

tory of protecting the rights of women and the Jewish

community in the United States. Hadassah is a strong

supporter of the strict separation of church and state,

as it is critical to preserving the religious liberties of

all Americans and especially of religious minorities.

Hindu American Foundation

The Hindu American Foundation is a nonprofit

advocacy organization for the Hindu American com-

munity. Founded in 2003, HAF’s work addresses a

range of issues—from the portrayal of Hinduism in

K-12 textbooks, to civil and human rights, to address-

ing contemporary problems such as environmental!

protection and interreligious conflict—by applying

Hindu philosophy. The Foundation educates the pub-

lic about Hinduism, speaks out about issues affecting

Hindus worldwide, and builds bridges with institu-

tions and individuals whose work aligns with HAF’s

objectives. HAF’s three areas of focus are education,

policy, and community. Since its inception, HAF has

made church-state advocacy one of its main areas of

interest. From issues of religious accommodation and

religious discrimination to defending the fundamental!

constitutional rights of free exercise and the separa-

tion of church and state, HAF has educated Ameri-

cans at large and the courts about the impact of such

issues on Hindu Americans, as well as about various

aspects of Hindu belief and practice in the context of

religious liberty.

Interfaith Alliance Foundation

Interfaith Alliance Foundation is a 501(c)(3) non-

profit organization committed to advancing religious

freedom for all Americans. Founded in 1994, Inter-

faith Alliance Foundation champions individual

rights, promotes policies that strengthen the bound-

ary between religion and government, and unites di-

verse voices to challenge extremism. Our membership

reflects the rich religious and cultural diversity of the

United States, adhering to over 75 faith traditions as

well as no faith tradition.

Jewish Social Policy Action Network

The Jewish Social Policy Action Network is an or-

ganization of American Jews dedicated to protecting

the constitutional liberties and civil rights of Jews,

other minorities, and the vulnerable in our society.

For most of the last two thousand years, Jews lived in

countries in which religion and state were one and mi-

nority faiths were constantly reminded of their out-

sider status by prominent governmental displays of

religious symbols. In Europe, especially, Jews and mi-

nority Christian faith communities faced discrimina-

tion, persecution, expulsion, or worse. Those who em-

igrated to America found that here one could be both

a Jew and an American, a Catholic and an American,

or an atheist and an American. JSPAN believes that

the gift of church—state separation is essential to all

our fundamental freedoms and therefore that great

care must be taken to prevent any erosion of the Es-

tablishment Clause. Critical to this effort is that mem-

bers of minority faiths not be made to feel like second-

class citizens by being subjected to government-spon-

sored displays of Christian religious symbols. Alt-

hough many Christians also find it offensive when

their sacred symbol is co-opted by government, for

Jews and other minorities—even if they believe that

not every use of a cross is intended as a specific en-

dorsement of Christianity—official use of such sym-

bols sends a viscerally divisive message that their

faith group does not enjoy the same privileged status.

National Council of Jewish Women

The National Council of Jewish Women is a grass-

roots organization of 90,000 volunteers and advocates

who turn progressive ideals into action. Inspired by

Jewish values, NCJW strives for social justice by im-

proving the quality of life for women, children, and

families and by safeguarding individual rights and

freedoms. NCJW’s Principles states that “Religious

liberty and the separation of religion and state are

constitutional principles that must be protected and

preserved in order to maintain democratic society.”

Consistent with our Principles and Resolutions,

NCJW joins this brief.

People For the American Way Foundation

People For the American Way Foundation is a

nonpartisan civic organization established to promote

and protect civil and constitutional rights, including

religious liberty, as well as American values like

equality and opportunity for all. Founded in 1981 by

a group of civic, educational, and religious leaders,

PFAWF now has hundreds of thousands of members

nationwide. Over its history, PFAWF has conducted

extensive education, outreach, litigation, and other

activities to promote these values. PFAWF strongly

supports the principles that both the Free Exercise

and Establishment Clauses of the First Amendment

protect freedom of religion, and that governmental ac-

tion that promotes a particular religion, as in this

case, harms religious liberty for all and violates the

First Amendment.

Reconstructing Judaism

Reconstructing Judaism is the central organiza-

tion of the Reconstructionist movement. We train the

next generation of rabbis, support and uplift congre-

gations and havurot, and foster emerging expressions

of Jewish life—helping to shape what it means to be

Jewish today and to imagine the Jewish future. There

are over 100 Reconstructionist communities in the

United States committed to Jewish learning, ethics,

and social justice. Reconstructing Judaism believes in

the importance of the separation of church and state

to ensure religious freedom and equal rights and

equal dignity for all.

Reconstructionist Rabbinical Association

The Reconstructionist Rabbinical Association is a

501(c)(3) organization that serves as the professional

association of 340 Reconstructionist rabbis, the rab-

binic voice of the Reconstructionist movement, and a

Reconstructionist Jewish voice in the public sphere.

Based on our understanding of Jewish teachings that

every human being is created in the divine image, we

have long advocated for public policies of inclusion,

antidiscrimination, and equality.

Union for Reform Judaism, Women of Reform

Judaism, and Men of Reform Judaism

The Union for Reform Judaism, whose 900 congre-

gations across North America include 1.5 million Re-

form Jews; Women of Reform Judaism, which repre-

sents more than 65,000 women in nearly 500 women’s

groups in North America and around the world; and

Men of Reform Judaism come to this issue out of our

long-standing commitment to the principle of separa-

tion of church and state, believing that the First

Amendment to the Constitution is the bulwark of re-

ligious freedom and interfaith amity. Religious free-

dom and its necessary corollary, the separation of

church and state, have lifted American Jewry as well

as other religious minorities, providing more protec-

tions, rights, and opportunities than have been known

anywhere else throughout history. Government spon-

sorship of religious symbols threatens the principle of

separation of church and state, which is indispensable

for preserving that unique blessing of American de-

mocracy—religious liberty.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.