Amicus Curiae Brief — Cobb County v. Harvey

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Buprome Court, Ud

; FILED

MAY 24 1994

No. 93-1721 | on |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

COBB COUNTY, GEORGIA

Petitioner,

BRUCE S. HARVEY and JAMES D. CUNNINGHAM,

Respondents.

On Petition For Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE RUTHERFORD INSTITUTE

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

Alexis I. Crow Gregory D. Smith

THE RUTHERFORD INSTITUTE (Counsel of Record)

1445 East Rio Road TN BPR# 013420

Charlottesville, VA 22901 THE RUTHERFORD INSTITUTE

(804) 978-3888 One Public Square

Suite 321

Of Counsel Clarksville, TN 37040

(615) 647-1299

Balmar Legal Publishing Services, Washington, D.C., (202) 682-9800

QUESTION PRESENTED

Does the First Amendment of the U.S. Constitution man-

date the complete elimination of religious related free speech by

individuals in a public building or forum unless said speech is

specifically approved by all non-religious individuals or orga-

nizations? Another way of stating this question is whether or

not the A.C.L.U., by and through Respondents, should have an

absolute veto power of Cobb County, Georgia’s right to display

the Ten Commandments in the Cobb County Courthouse pur-

suant to the gift of an individual.

‘3

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............. ili

INTEREST OF AMICUSCURIAE .........

SUMMARY OF ARGUMENT ...........

Gb ae cb 5 sy sb vgn se ee 3

ISSUE: Does the First Amendment of the U.S.

Constitution mandate the complete elimi-

nation of religious related free speech by

individuals in a public building or forum

unless said speech is specifically ap-

proved by all non-religious individuals or

organizations? Another way of stating

this question is whether or not the

A.C.L.U., by and through Respondents,

should have an absolute veto power of

Cobb County, Georgia’s right to display

the Ten Commandments in the Cobb

County Courthouse pursuant to the gift of

DE, oS. 6s 6! bb G0 cd «96 3

Ee ee ee eee 12

iii

TABLE OF AUTHORITIES

Cases

A.C.L.U. v. Rabun County Chamber of Commerce,

678 F.2d 1379 (11th Cir. 1982) ........

Americans United for Separation of Church and

State v. City of Grand Rapids, 922 F.2d 303

eh re ee are

Americans United for Separation of Church and

State v. City of Grand Rapids, 980 F.2d 1538

SG I o's ob ss als 6 5 4

Berger v. Rensselaer Cent. School Corp., 982 F.2d

Gr ED one 6e-ee new te o's

Board of Education of Westside Community Schools

v. Mergens, 496 U.S. 222 (1990) .......

Bowen v. Kendrick, 487 U.S. 589 (1988). .....

Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383

iy 3 ES eS a pane er a

Cohen v. California, 403 U.S. 15(1971)......

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

Foremaster v. City of St. George, 882 F.2d 1485

fo dd ee

Gonzales v. North Tip of Lake County, Indiana,

te Pte 8 |

Hague v. C.1.0., 307 U.S. 496 (1939) .......

Harvey v. Cobb County, GA, 811 F.Supp. 669

SN a ee

Kaplan v. Burlington, 891 F.2d 1024

ES, tire sy aed a kK 06.6 06 we

Kreisner v. City of San Diego, 1 F.3d 775 (9th Cir.

DO ib as tS e a kw ee ee we ees

Pages

passim

Larson v. Valente, 456 U.S. 228 (1982) ...... 9

Lemon v. Kurtzman, 403 U.S. 602 (1971) ..... 3

Lynch v. Donnelly, 465 U.S. 668 (1984) ...... 9,10, 12

McDaniel v. Paty, 435 U.S. 618 (1978) ...... 8

Murray v. City of Austin, Texas, 947 F.2d 147

ot RB) EA ee ew Paes or re 9,10, 12

National Socialist Party v. Skokie, 432 U.S. 43

STE ie 0k ok 4S Ed 4 WR 80 4

Perry Education Association v. Perry Local

Educator’s Association,

I so 6 4 6-038. 60 004 5

Smith v. County of Albemarle, 895 F.2d 953

ae a a ae 8

Terminiello v. City of Chicago,

Ee eer are ae 6

Texas v. Johnson, 491 U.S. 397 (1989) ...... 4,6, 10

Turner v. U.S., 396 U.S. 398 (1970) ........ 7

U.S. v. Schwimmer, 279 U.S. 644 (1928)... . .. 13

Walz v. Tax Comm'n, 397 U.S. 664 (1970) .... 12

Widmar v. Vincent, 454 U.S. 263 (1981). ..... 3, 8, 11

CONSTITUTIONS

First Amendment, U.S. Constitution ........ passim

STATUTES/RULES

Se Ge er 3,11

IS og be Ne i 6 U's 0 we es l

Public Law 97-280 (1982) ............. 2

EE REEL BES ae RE meG gee Mme OOE SEES ow 7

PS A SS Gite) AE Gretel ae io ew ee 7

OTHER

The Holy Bible, Exodus 20:1-17 ..........

ame Gaory Bese, FoR IS715 2 ww wl

The Holy Bible, Matthew 22:34-40 ........

Bartlett, Familiar Quotations, 50th ed.,

“Lord Acton” 615:15 (Little, Brown

EE a

Bartlett, Familiar Quotations, 50th ed.,

“Louis Dembitz Brandeis 678:4 (Little, Brown

I ee i ke kw

L. Caplan, The Tenth Justice, The Solicitor General

and the Rule of Law, 22 (A.A. Knopf Press,

a Png > pd ed E 04'S 00 o »

J. Eidsmoe, Christianity And The Constitution,

355-378 (Baker Book House, Co., 1987) . . .

Life Magazine, “Why We Pray’,

nt tt tee

U.S. News And World Report, “Spiritual America In

God We Trust — Testing Personal Faith In A

Cynical Age”, 48-51 (April4, 1994) .....

J.W. Whitehead, The Rights of Religious Persons

In Public Education, 333 (Crossway Books,

Ce a de he ok a mc es

J.W. Whitehead, The Second American Revolution,

93-100 (Crossway Books, 1982) .......

passim

4,5

No. 93-1721

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

COBB COUNTY, GEORGIA

Petitioner,

BRUCE S. HARVEY and JAMES D. CUNNINGHAM,

Respondents.

On Petition For Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE RUTHERFORD INSTITUTE

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

The Rutherford Institute, (“Amicus”) respectfully submits

this brief as amicus curiae in support of the petition for writ of

certiorari filed by the petitioner, Cobb County, Georgia. Pursu-

ant to Sup. Ct. R. 37.2, the parties have consented to the filing

of this brief. Amicus has filed the Sup. Ct. R. 37.2 written

consent with the Clerk of this Honorable Court.

INTEREST OF THE AMICUS CURIAE

The Rutherford Institute (hereinafter “Amicus’’) is a non-

profit religious based civil liberties organization that defends

the rights of persons of all religious faiths throughout the United

States on a pro bono basis. Amicus defends school children that

wish to pray before school, trains attorneys in First Amendment

litigation and educates the general public regarding various

religious legal issues. [J.W. Whitehead, The Rights of Religious

Persons In Public Education, 333 (Crossway Books, 1991)].

The Rutherford Institute’s interest in this case is similiar

to that promoted by the U.S. Congress and President Reagan’s

October 4, 1982 declaration that 1983 is the “Year of the Bible”.

Their interest (as well as Amicus’) is:

...Biblical teachings inspired concepts of civil govern-

ment that are contained in our Declaration of Indepen-

dence and the Constitution of the Unites States;

...this Nation now faces great challenges that will test

this Nation as it has never been tested before; and

...renewing our knowledge of and faith in God

through Holy Scripture can strengthen us as a nation

and a people...

[Public Law 97-280 (1982)]. Protection of religious rights for

all Americans in the face of direct attack on those rights is the

interest of Amicus.

SUMMARY OF ARGUMENT

The First Amendment of the United States Constitution

does not prohibit the posting of a religious/historical document

such as the Ten Commandments in a public forum when said

document is designed as a tribute to an individual or family or

an act of freedom of expression by an individual. Petitioner

does not actively promote the document in question with money

or extraordinary maintenance. Respondents have not shown

any actual injury or standing to bring this lawsuit. Further, the

lower court’s decisions granted Respondents a de facto veto

power over any efforts Petitioner made to retain the Ten Com-

mandments display. This de facto veto power strips Petitioner

and the individual of the opportunity to express their religious

views in a public forum and is far beyond the graying line of

Establishment Clause constitutional muster set out in “the

Lemon test”. [Lemon v. Kurtzman, 403 U.S. 602 (1971)]. Free-

dom of opportunity, be it in thought, speech, action or belief is

the backbone of the Bill of Rights. The present decision in this

case must be reversed because it undermines Petitioner’s free-

dom of opportunity. Finally, the lower courts never considered

this case as a First Amendment Free Speech case instead of an

Establishment Clause issue.

Certiorari should be granted pursuant to Sup. Ct. R. 10.1

(a) and (c).

ARGUMENT

ISSUE: Does the First Amendment of the U.S.

Constitution mandate the complete

elimination of religious related free

speech by individuals in a public build-

ing or forum unless said speech is spe-

cifically approved by all non-religious

individuals or organizations? Another

way of stating this question is whether

or not the A.C.L.U., by and through

Respondents, should have an absolute

veto power of Cobb County, Georgia’s

right to display the Ten Command-

ments in the Cobb County Courthouse

pursuant to the gift of an individual.

The Constitution of the United States guarantees freedom

of religion, not freedom from religion. [Widmar v. Vincent, 454

U.S. 263, 269 (1981)]. Specifically, clause 1 of the First

Amendment says, “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

thereof;...”. The orders of the Eleventh Circuit and the Middle

District of Georgia unwittingly dictate freedom from religion

because the courts allow Respondents absolute power to set out

the requirements, if any, necessary to allow Cobb County’s Ten

Commandments to remain on their courthouse wall. [Harvey v.

Cobb County, GA, 811 F.Supp. 669 (M.D. Ga. 1993), hereinaf-

ter, “Harvey”]. Specifically, the District Court opined, “...the

Court...give[s] Cobb County, in consultation with plaintiffs

[Respondents], an opportunity to develop an education display

including the Ten Commandments panel... If Cobb county fails

to develop an appropriate display approved by the Court, the

panel must be removed.” [Harvey, 811 F.Supp. at 679]. The

District even suggested that Respondents’ expert be employed

as aconsultant for any proposed display. [/d.]. All that Respon-

dents had to do to assure that Petitioner’s display be removed

was choose not to negotiate. The lower court orders granted

Respondents an absolute veto power over Petitioner’s Ten Com-

mandments display! from Exodus 20:1-17.

Amicus acknowledges that the U.S. Constitution is de-

signed to be anti-majoritarian and protect the dissenting minor-

ity views from the views of the majority of America. [See e.g.,

National Socialist Party v. Skokie, 432 U.S. 43, 44 (1977) and

Texas v. Johnson, 491 U.S. 397, 404 (1989)]. Amicus respect-

fully asserts that the same Constitution protects the majority

from the minority too. It does not take a master researcher to

learn that Petitioner’s view in the present case is the majority

view. The cover of the April 4, 1994 U.S. News and World

Report declares, “Spiritual America In God We Trust — Test-

ing Personal Faith In A Cynical Age”. Inside this magazine, a

national opinion poll indicates that 93% of Americans believe

in God. [/d. at 48]. This same poll shows that 55% of those

surveyed believe that “God is the moral guiding force of Amer-

ican democracy”. [/d. at51]. Nearly half of those surveyed also

believe that President Jefferson’s “wall of separation” should

not be absolute. [/d.]. Unfortunately, the influence of religion

is on the decline in America. [/d. at 50]. Decisions such as the

. The display in question also includes “the Great Commandment” from

Matthew 22:34-40. For convenience, Amicus will collectively refer to both

as “the panel” or “the Ten Commandments”.

one in this case are a primary reason that religion is being

strangled. Courts confuse the fact that “separation of church and

state” simply means that the government should not try to run

the church. Examples of the application of this rule include

passing laws endorsing a state-run church or not allowing people

the freedom of opportunity to worship as they choose. The First

Amendment does not prohibit Christians from being involved

in government. [See e.g. Jesse Jackson]. It prohibits politicians

(the state) from running the church.”

Under the facts of Petitioner’s case, the Gardner family sua

sponte donated the Ten Commandments panel to the Cobb

County Courthouse in 1939. [Petition for cert. at 3]. This was

apparently an exercise of the Gardner’s right to freedom of

speech under clause 3 of the First Amendment. Justice

O’Connor has noted, “there is a crucial difference between

government speech endorsing religion, which the Establish-

ment Clause forbids, and private speech endorsing religion,

which the Free Speech and Free Exercise Clauses protect’.

[Doe v. Small, 964 F.2d 611, 617 (7th Cir. 1992), citing Board

of Education of Westside Community Schools v. Mergens, 496

U.S. 226 (1990)]. “In places which by long tradition or by

government fiat have been devoted to assembly and debate, the

rights of the State to limit expressive activity are sharply circum-

scribed”. [Hague v. C.I.O., 307 U.S. 496, 515 (1939) and Perry

Education Association v. Perry Local Educators’ Association,

460 U.S. 37, 45 (1983)]. The Gardner’s Ten Commandments

panel has been in the Petitioner’ s Courthouse or on their grounds

since 1939. Public courthouses have been used for individual

free speech forums in times past for liberal causes and the same

freedom of opportunity and equality should be accorded conser-

2 The U.S. News survey mentioned earlier noted that 78% of those

surveyed believe that the “... president should be a moral and spiritual leader”.

[Cf., Life Magazine, “Why We Pray”, page 54 et seg. (March, 1994)].

vative points of view. [See e.g., Texas v. Johnson, 491 U.S. 397,

399 (1989) and Cohen v. California, 403 U.S. 15, 16 (1971)}.

It is uncontested that county or state support of the

Gardner’s gift was de minimus at best. [Petition for cert. at

10-11. Accord, Harvey, 810 F.Supp. 672-673]. The focal point

of Respondent’s complaint is that they do not like what is said

in the panel. “Over forty years ago, the Supreme Court recog-

nized that while free speech breeds controversy, it must be

protected.” [Americans United For Separation of Church and

State v. City of Grand Rapids, 980 F.2d 1538, 1542 (6th Cir.

1992), citing Terminiello v. City of Chicago, 337 U.S. 1, 4

(1949)]. “Offense to moral and religious sensitivities does not

constitute an injury in fact and is insufficient to confer standing”

to sue. [Gonzales v. North Tip of Lake County, Indiana, 4 F.3d

1412, 1416 (7th Cir. 1993)]. It is naive for the courts below to

enable Respondents to completely eliminate the Ten Command-

ments panel by refusing to work with Petitioner, but then in turn

to expect Respondents to work with Petitioner to save said panel

through a settlement. Two federal circuits have noted that the

federal courts cannot obtain complete majority opinion agree-

ment on this subject. It is not reasonable to believe adverse

parties can agree better than judges on this issue. [Americans

United for Separation of Church and State v. City of Grand

Rapids, 922 F.2d 303, 309 (6th Cir. 1990) and Kreisner v. City

of San Diego, 1 F.3d 775, 783 (9th Cir. 1993)]. Even though

Respondents apparently did attempt, in good faith, to peacefully

resolve this case; few other Respondents would be so fair.

“Absolute power corrupts absolutely”. ([Bartlett’s, Familiar

Quotations 50th ed. “Lord Acton” 615:15 (Little, Brown & Co.

1982)].

By way of example, Amicus will take the Eleventh

Circuit’s logic out of Georgia and place it in Tennessee.? The

Tennessee State Capital is in Nashville, Tennessee. On the

’ Amicus knows that Tennessee is in the Sixth, not the Eleventh Circuit.

capitol grounds, surrounding the capitol, are approximately

eight monuments.’ The most significant for the purposes of this

brief is the grave of President James K. Polk and his wife Sarah

Childress Polk. Among the statements made on the Polks’ tomb

are:

1. “The excellence of Christianity was exemplified in

his death.”

2. “Asleep in Jesus’;

3. “A noble woman, a devoted wife; a true friend, a

sincere Christian.”:

4. “Blessed are the dead which die in the Lord.”

Approximately ten yards to the south of Polk’s tomb is a state

historical marker remembering the “Holy Rosary Cathedral”

(1820), the first Catholic Church in Tennessee. This marker

notes that Tennessee’s first Catholic Bishop, R.P. Miles, was

appointed on the present capitol site in 1847. To the north of

Polk’s grave is a statue of President Andrew Jackson.5 Other

monuments include U.S. Senator Edward Carmack’s “Pledge

To The South” (placed by the Womens Christian Temperance

Union), which includes a reference to praying to God; a masonic

time capsule; a statue of Alvin C. York, (a religious conscien-

tious objector to war — until he became the greatest hero of

W.W.I), and a copy of the Liberty Bell. The final statue, which

overlooks the Tennessee Supreme Court, is in tribute to Civil

War hero Sam Davis. This monument talks of the Lord “calling

up earth’s heroes” and quotes John 15:13. Retaining the status

Amicus presents the information relating to the monuments surround-

ing the Tennessee State Capital pursuant to F.R.E. 201, 202 and/or “Informa-

tion Lodging”. [See e.g., Turner v. U.S., 396 U.S . 398, 412 fn. 15 (1970) and

L. Caplan, The Tenth Justice, The Solicitor General and the Rule of Law at

page 22 (A.A. Knopf Press, 1987)].

> Jackson’s home, “The Hermitage”, is a federal historic site, as is the

church which President Jackson built, which is part of said historic site.

. “Greater love hath no man than this - that a man lay down his life for

his friends.”

quo on First Amendment rights conforms to the original intent

of the Constitution. [See generally, J. Eidsmoe, Christianity

And The Constitution, 355-378 (Baker Book House, Co. 1987)}.

The present opinions in Petitioner’s case would appear to

allow a non-religious organization to either require Tennessee

to place other monuments, which Respondents dictate, on the

capitol grounds or in the alternative, the present standing mon-

uments must be removed or greatly modified. This flies in the

face of McDaniel v. Paty, 435 U.S. 618, 641 (1978) (Brennen

concurring) which says that religious speakers have the same

right to public forums as non-religious speakers. [Accord

Widmar v. Vincent, 454 U.S. 263, 269 (1981)]. The Carmark

and Davis monuments were placed on the grounds of the

Capitol pursuant to private, not public, funds according to the

plaques attached to the monuments. The Polk grave does not

indicate how funding for the grave occurred. “Religious speech

may not be excluded from public forums just because passersby

misunderstand the public role.” [Chabad-Lubavitch of Georgia

v. Miller, 5 F.3d 1383, 1394 (11th Cir. 1993). But see, Kaplan

v. Burlington, 891 F.2d 1024, 1029 (2nd Cir. 1989) and Smith

v. County of Albemarle, 895 F.2d 953, 958-960 (4th Cir. 1990).

The “free speech” wording of the monuments are subject to

complete undermining by liberal groups under the Eleventh

Circuit’s grant of an absolute veto power. This same power, left

unchecked, could also be used by conservatives to eliminate

“X-Rated” art displays in public forums. Whiie Amicus is not

promoting obscenity, it is important for the Court to see the

“Pandora’s Box” the present order in this case creates.

Although the monuments on the Tennessee State Capitol

grounds have religious overtones, the reason James K. Polk is

buried on the Tennessee State Capitol grounds is because of who

President Polk is — not the fact that he was a Christian. The

other people honored are noted Tennesseans that happened to

be religious. Under the case now before this Honorable Court,

each of the monuments discussed could be dismantled because

of its religious overtones, even though the person, not his beliefs,

are the focus of the honor conveyed to each. A person’s beliefs

and convictions are their greatest assets.

The order of the Eleventh Circuit does not address whether

the Ten Commandments panel is a tribute to God or the Gardner

family of Cobb County, Georgia’s public service, personal

beliefs and lives. While this issue has been acknowledged as

important, no court has directly addressed this point. [See

Kreisner v. City of San Diego, | F.3d 775, 782 and 786 (9th Cir.

1993)]. A precedent that says a public tribute to private citizens

cannot acknowledge the honoree’s views strips America of

much of its history and culture. It would be a shame to eliminate

a James K. Polk (or a Reverend Martin Luther King, Jr.) from

their deserved places of honor because they personally believed

in God. It would be illogical to honor Polk or King, but not for

what they “stood for’. Justice Brandeis said:

There is in most Americans some spark of idealism,

which can be fanned into a flame... the results are

often extraordinary.

[ Bartlett, Familiar Quotations, 50th ed. “Louis Dembitz Bran-

deis”, 678:4 (Little, Brown & Co. 1982)]. Whether or not one

agrees with President Polk’s (or Reverend King’s) views is not

a legitimate reason to erase their beliefs and names from public

monuments, roads, buildings and museums. [Accord, Larson v.

Valente, 456 U.S. 228, 662-663 (1982) (Kennedy concurring).

See also, Murray v. City of Austin, Texas, 947 F.2d 147, 154

(Sth Cir. 1991)}. This Honorable Court has rejected focusing

solely on the religious component of a challenged action/mon-

ument when deciding if said monument is constitutional. [Lynch

v. Donnelly, 465 U.S. 668, 676-677 (1984)].

The decision of the Eleventh Circuit focuses only on the

words of the Ten Commandments panel, not why the panel was

placed in the Cobb County Courthouse. [See Harvey, 811

F.Supp. at 675 hn. 4]. “The public forum doctrine would be

rendered meaningless if only places in the middle of nowhere

could be free speech areas, and if all speech that occurred near

‘structural symbols of government’ had to be viewed as govern-

ment speech”. [Kreisner v. City of San Diego, 1 F.3d 775, 786

(9th Cir. 1993)]. By giving Respondents an absolute de facto

veto power regarding the public display of the Ten Command-

ments panel, the lower courts are placing preference for non-re-

ligion over religion. This is in direct conflict with the Fifth

Circuit which holds, “To the extent that the Establishment

Clause prevents preferences for one religion over another it

likewise prevents preferences for religion over non-religion” (or

vice-versa). [Murray v. City of Austin, Texas, 947 F.2d 147,

155 (Sth Cir. 1991)]. The notion that the Gardner’s Ten Com-

mandments panel, which was allowed to fall into dilapidation

by Petitioner, poses “...a real danger of establishment of a state

church is far-fetched indeed”. [Lynch v. Donnelly, 465 U.S.

668, 686 (1984)]. As noted by the Seventh Circuit, “...the First

Amendment is intended to restrict religious activity not by

individuals but by the government”. [Berger v. Rensselaer

Cent. School Corp., 982 F.2d 1160, 1168 (7th Cir. 1992)]. If

Paul Robert Cohen can use a California courthouse to curse the

draft, and Gregory Lee Johnson can burn the American Flag in

front of a Texas courthouse, why can’t the Gardner family use

a Georgia courthouse to say, “Honor Thy Father and Thy

Mother’? [Cohen v. California, 403 U.S. 15, 16 (1971); Texas

v. Johnson, 491 U.S. 397, 399 (1989); and Harvey, 811 F.Supp.

at 672]. The lower courts also violated the rule of Bowen v.

Kendrick, 487 U.S. 589, 602 (1988) that suggests that courts

must determine if the Gardner’s Ten Commandments panel’s

placement was presented to Cobb County, Georgia “primarily

if not entirely, by a legitimate secular purpose”. In this case,

that logical free speech secular purpose was the Gardner family

reminding the citizens of Cobb County, Georgia of their family

<5 ee alae

and its generosity. [See generally, A.C.L.U. v. Rabun County

Chamber of Commerce, 678 F.2d 1379, 1390 (11th Cir. 1982)].

As noted by the Tenth Circuit, the federal courts of appeals

of four circuits are split over the issue of an individual’ s standing

to attack a public display of a religious symbol, such as the Ten

Commandments, on government property under the Establish-

ment Clause. [Foremaster v. City of St. George, 882 F.2d 1485,

1490 (10th Cir. 1989)]. The Seventh Circuit requires avoidance

or change of behavior because of the offensive symbol. The

Tenth, Sixth and Eleventh Circuits simply require personal

contact. [/d.]. A free speech issue gives Respondents even less

Standing to complain about the Gardner’s 1939 gift to Petitioner.

[See e.g., Widmar v. Vincent, 454 U.S. 263, 271 (1981)]. This

conflict justifies a grant of certiorari by this Honorable Court

pursuant to Sup. Ct. R. 10.1(a) and (c) because several circuits

are at odds in this case and clauses 1 and 3 of the First Amend-

ment conflict on the facts in this case. Who is doing the

“talking” through the Ten Commandments panel — the Gard-

ners or Cobb County, Georgia?

In conclusion, Amicus would respectfully note that even

though the Petitioner’s Ten Commandments panel stood alone

in a corner of the Cobb County Courthouse, other symbols

apparently adorned other, and more prestigious, parts of the

courthouse. At least one Respondent noted that the panel indi-

cates the influence of religion in general and Christianity in

particular on our government and court system. [Harvey 811

F.Supp. at 673, point 13]. This is not an attempt by Petitioner

to exalt one religion over another. It simply acknowledges the

historical value of the Ten Commandments to American juris-

prudence and the Gardner family to local history. This would

be the same basic reason that Nashville, Tennessee’s Women’s

Christian Temperance Union placed “Carmack’s Pledge to the

South” upon the Tennessee State Capital grounds — to honor a

person and his beliefs. History, such as conveyed by the Ten

Commandments panel, shows an unbroken practice of honor to

individuals such as the Gardner family who just happen to be

religious. The historic significance of the Ten Commandments

(or individuals and their views) “...is not something to be lightly

cast aside”.’ [Murray v. City of Austin, Texas, 947 F.2d 147,

115 (Sth Cir. 1991), citing Walz v. Tax Comm’n, 397 U.S. 664,

678 (1970).

CONCLUSION

As noted in Lynch v. Donelly, 465 U.S. 668, 676-677

(1984):

The very chambers in which oral arguments on this

case were heard is decorated with a notable and per-

manent — not seasonal — symbol of religion: Moses

with the Ten Commandments.®

If the decision of Harvey v. Cobb County, GA, 811 F. Supp. 669

(N.D. Ga. 1993) remains precedent, in direct contradiction of

multiple cases from this Honorable Court, the Ten Command-

ments will be stripped from the Cobb County Courthouse wall.

The next logical step is to sandblast President Polk’s grave

because it acknowledges his belief in God. The chambers of

this Honorable Court cannot be far behind. Finally, will even

the Declaration of Independence be removed from state and

federal buildings? [See generally, J.W. Whitehead, The Second

American Revolution, 93-100 (Crossway Books, 1982)]. It is

illogical to give Respondents an absolute veto power regarding

the decorations of Petitioner’s courthouse. Justice Holmes said,

E “The Supreme Court has raised, but never resolved, the question of

whether avoiding an Establishment Clause violation provides a compelling

State interest justifying a content-based restriction on speech in a public

forum.” [Kreisner v. City of San Diego, 1 F.3d 775, 783 (9th Cir. 1993)].

8 Members of this Honorable Court that were sitting during the building

or planning stages of the present U.S. Supreme Court Building include: Taft,

Hughes, Stone, Holmes, Brandeis and Cardozo among others.

“If there is a principle of the Constitution that more imperatively

calls for attachment than any other it is the principle of free

thought — not free thought for those who agree with us but

freedom for the thought that we hate”. [U.S. v. Schwimmer, 279

U.S. 644, 653 (1928)]. Protect the Gardner’s constitutional

Opportunity to express their thought! Certiorari should be

granted.

This 24 day of May, 1994.

Respectfully submitted,