Petition for Writ of Certiorari — O'Bannon v. Indiana Civil Liberties Union

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Ci) supreme Court, U.S.

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01 966 oo

OFFICE OF THE CLERK

No. 01- —

IN THE

Supreme Court of the Anited States

FRANK O’BANNON, in his official capacity as

Governor of Indiana,

Petitioner,

v.

INDIANA CIVIL LIBERTIES UNION, et al.,

Respondents.

Petition for a Writ of Certiorari

to the United St»es Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

STEVE CARTER

Office of the Indiana Attorney General

Attorney General THOMAS M. FISHER*

IGC South, Fifth Floor Special Counsel

402 West Washington Street JAMES B. MARTIN

Indianapolis, IN 46204 Deputy Attorney General

317-232-6201

*Counsel of Record Counsel for Petitioner

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i

QUESTION PRESENTED

Whether the Establishment Clause permits the

government to display the Ten Commandments to

memorialize the role the Commandments have played in the

development of the rule of law and of the American legal

system.

ii

PARTIES TO THE PROCEEDINGS

The plaintiffs are the Indiana Civil Liberties Union, Joan

Laskowski, Alice Bennett, James A. Tanford, Steven

Schroeder, Patrice Muumba Abduallah, Reverend Kevin

Armstrong, Rabbi Eric Bram, and Dr. Edgar Towne. The

sole defendant is Frank O’Bannon in his official capacity as

Governor of Indiana.

ili

TABLE OF CONTENTS

QUESTION PRESENTED ...............000000: Reubdlaieeevedeubenes i

PARTIES TO THE PROCEEDINGS ..............0.ccececese0e- li

SAS GE PATTIE UID od icccsecsncoccsavivicibbonsnsovevecee Vv

PETITION FOR A WRIT OF CERTIORARI.............. 1

SIT EIEIRITTT sesisccvcsyeisecesenonbeiovseseoniessichvdcs-owboeize 1

MNOS SSE Ne ce Ream OE 1

CONSTITUTIONAL PROVISIONS INV OLVED sees 1

NN cada caanitsancisedsduabaninmsceiiansaidinss 2

REASONS FOR GRANTING THE PETITION .......... 9

I. THE DECISION BELOW EXACERBATES A

“CONFLICT AMONG THE SEVENTH CIRCUIT,

THE TENTH CIRCUIT AND THE COLORADO

cr ig SESE CS ND ae a 9

Ii. THE PERMISSIBILITY OF GOVERNMENT

TEN COMMANDMENTS DISPLAYS IS AN

IMPORTANT AND RECURRING ISSUE.......... 11

Ii. THE DECISION BELOW IS WRONG. ............... 14

iv

TABLE OF CONTENTS—Continued

B. The Court Misapplied The Secular Purpose

C. Displaying The Ten Commandments Does

Not Establish Religion Any More Than

Other Acceptable Government Religious

Vv

- TABLE OF AUTHOwu ITES

CASES: Page

ACLU of Ohio v. Ashbrook, et al., No. 1:01-CV-556

(N.D. Ohio filed Mar. 8, 2001) 0.0... essssssessesesssseecereeeeees 12

ACLU v. Garrard County, No. 01-CV-481 (E.D. Ky.

oe ae. | peeamananenmte nes S ciiecaenkcibenamedieamagie 12

ACLU v. Grayson County, No. 01-CV-202 (W.D. Ky.

Ee FORE, MINOR OR TROT OT 12

ACLU v. McCreary County, 145 F.Supp. 2d 845 (E.D. Ky.

2001), appeal pending, No. 01-5935 (6th Cir. filed

EY i AEE Siiinchcccetinicachichartitackeybiksblcsadsobintaieitoiatia 11,12

ACLU v. Mercer County, No. 01-CV-480 (E.D. Ky. filed

OO eB Fa BOE Mivinatinvssisincelacnhcteisapnintsictrsiiiasiieigihdthebiiceulectpeiindleicaaondiica 12

ACLU v. Plattsmouth, No. 4:01-CV-3109 (D. Neb. filed

Met Di ic i os Oar ee oa: 12

ACLU v. Pulaski County, 145 F.Supp. 2d 845 (E.D. Ky.

2001), appeal pending, No. 01-5935 (6th Cir. filed

BE ila EE Wicsiewiictsinnscsnb beans pncnts tenn sssitionsinandedipssianpesondiael 12

ACLU v. Rowan County, No. 01-CV-220 (E.D. Ky. filed

i te LE 4 NRRNSERRERTREE ANE 2 es EMUSIC AMON OMI a Ord 12

Adland v. Russ, 107 F.Supp. 2d 782 (E.D. Ky. 2000),

appeal pending, No. 00-6139 (6th Cir. argued

Nov. 2, 2001)............00000 petite dtcta inal dccboigdaaaiivntstucisinesitie 11

Anderson v. Salt Lake City Corp., 475 F.2d 29

SE al Far Fi icctinttnniccsnretiditadininniinsceniciencivnccevbnncctebiivsaes 9, 10, 11

vi

TABLE OF AUTHORITIES — Continued

CASES: Page

Ashcroft v. ACLU, 121 S. Ct. 1997 (2001) .........ceseeseeeeveee 6, 7

Baker v. Adams County, No. C-1-99-094 (S.D. Ohio filed

Be. 2 SII cevi decksictinckevttcbisenienisopencicstticeninialbisisnaivlicnbacibicintsenss 12

Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000),

cert. denied, 121 S. Ct. 2209 (2001) ...........seceseeseeeeeeeeees 9, 12

Christian v. City of Grand Junction, No. 01-CV-685

(D. Colo. filed Apr. 16, 2001) 0.0... ee eecceeeceseeeseceeeeeetenees 12

City of Elkhart v. Books, 121 S. Ct. 2209 (2001)...2, 3, 15, 16

City of Indianapolis v. Edmond, 528 U.S. 1153, aff'd,

Be Arie Be CD vac cinisienctiesstavinancunsormessnencsigtathdbeentinanentecstle 7

County of Allegheny v. ACLU Greater Pittsburgh

Chapter, 492 U.S. 573 (1989).........s.sccssssseseseeseeseeeeeees passim

Doe v. Harlan County, 145 F.Supp. 2d 845 (E.D. Ky. 2001),

appeal pending, No. 01-5935 (6th Cir. aed

PR Fils BE Pisces pcitinscinatincienternnienaeaiDianniiacabibowadiaaaal 11

Edwards v. Aguillard, 482 U.S. 578 (1987).........:...0++ 15, 16

Freethought Society v. Chester County, No. 01-CV=5244

(E.D. Pa. filed Oct. 16, 2001)... eee cceseeeseeenseeeeeeeees 12

Glassroth v. Moore, No. 01-CV-1268 (M.D. Ala. filed

CUE DR BPG Re cciisncinicns aikscsiccstnisasncowssnscsenesbaisila niece daaicatiadineiana 12.

vii

TABLE OF AUTHORITIES — Continued

CASES: Page

Hoffman v. City of Mishawaka, No. 3:01-CV-00780

(N.D. Ind. filed Nov. 2, 2001).........0...ceeccecseseseeeseees pibisiaass 12

King v. Richmond County, No. 00-CV-100 (S.D. Ga.

SR hg a cerrcctnnnietennieceninitinininaip sich ewtnigiaaeamsibitiiantwiss 12

Lemon v. Kurtzman, 403 U.S. 602 (1971)..............0000+ passim

Lynch v. Donnelly, 465 U.S. 668 (1984)................0000. passim

Marsh v. Chambers, 463 U.S. 783 (1983) ..........:...s00000 17,18

Modrovich v. Allegheny County, No. 2:01-CV-531

(W.D. Pa. filed Mar. 20, 2001) .00...... eee ceceeeeeceesseeeeeeees 12

Mueller v. Allen, 463 U.S. 388 (1983) ............:cccsceesseeesseeeees 16

State of Colorado v. Freedom From Religion

Foundation, Inc., 898 P.2d 1013 (Colo. 1995).............. 10, 11

Stone v. Graham, 449 U.S. 39 (1980) -.-ccccccssscesoee 2,9, 14, 15

Suhre v. Haywood County, 55 F. Supp. 2d 384

Ear ci a, I a aicaicdcciceahiedeccnaitibamcemeinckadaanmkalendctesinanntive 10, 18

Summum v. City of Ogden, 152 F. Supp. 2d 1286

16 Ms et BRRS ILA oR esos a ae OTE TO 9

Vili

TABLE OF AUTHORITIES — Continued

CONSTITUTION AND STATUTES: Page

UB, Cm, MINING Evie cis sicesiciinntdctineicsbvsestinvincasecssncbeons passim

U.S. Const. amend. XIV, | EE Fe Pe ae ROE ee Ne 1,2

I I i is i tee aoc 1

eg eB . FESMRCH OE C28. t SES PER Meereee Se wee Emenee 5

AE ATTA § NOU cnc dciintiiiciechicnininctiatitateintictcaiain 5

Ind. Code § 4-20.5-21-2 (West Supp. 2001)..............c.cce0e0 13

Ind. Code § 36-1-16-2 (West Supp. 2001).............ccccseesesees 13

Ky. Rev. Stat. § 158.195 (Michie 2001)... ee ceeeeeees 13

N.M. Stat. §§ 22-15-15 to 22-15-20 (Michie 2001)............. 13

N.C. Gen. Stat. § 115C-81(g)(3b) DOT vecistirciticsiinitctitaaans 13

S.D. Codified Laws § 13-24-17.1 (Michie Supp. 2001)......13

OTHER AUTHORITIES: 7

Americans United For Separation of Church and State:

State Legislative Update For The 2001 Sessions, at

http://www.au.org/states.htm (last visited December 26,

7, MOIERR A anit ati eR vole © Sabir diaen ts enna PTR oe SOREN WR 13

ix

TABLE OF AUTHORITIES — Continued

OTHER AUTHORITIES: Page

Hanna Rosin, William Claiborne, Taking the Command-

ments Public; Indiana Passes Bill Allowing Display in

Schools, Other Government Facilities, The Washington

OU, PO i, Foe OE Fae isis ik Ai iscsdctscsccstnscvecccscceee 13

Russell Kirk, The Roots of American Order (1974) ........ 2,17

Susan Dillman, Decalogue Display Under Challenge,

South Bend Tribune, May 19, 2000, at D1, available

Se Fe ee acter ichthipiiecichedititinttierttccnieinsensticini 4

Ten Commandments Defense Act, H.R. 1501,

BO SN Fe CI es isis css iascivetsscecevececascestervvseore hd

PETITION FOR A WRIT OF CERTIORARI

Indiana Governor Frank O’Bannon respectfully petitions

for a writ of certiorari to review the final judgment of the

United States Court of Appeals for the Seventh Circuit

affirming the preliminary injunction of the U iited States

District Court for the Southern District of Indiana.

OPINIONS BELOW

The Seventh Circuit’s opinion is published at 259 F.3d

766 (7th Cir. 2001) and is reprinted in the appendix at App.

la-27a. The Order Granting Preliminary Injunction of the

United States District Court for the Southern District of

Indiana is published at 110 F. Supp. 2d 842 (S.D. Ind. 2000),

and is reprinted at App. 28a-61a.

JURISDICTION

The Court of Appeals issued its opinion and judgment on

July 27, 2001. The Seventh Circuit denied Petitioner’s

timely filed Petition for Rehearing En Banc on October 2,

2001. App. 62a. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment of the United States

Constitution provides: “Congress shall make no law

respecting an establishment of religion . . . .” U.S. Const.

amend. I. Section 1 of the Fourteenth Amendment pro-

vides in relevant part:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person

of life, liberty, or property, without due process of

2

law; nor deny to any person within its jurisdiction the

equal protection of the laws.

U.S. Const. amend. XIV, §1.

STATEMENT

The Ten Commandments have played a critical role in

the development of Western Civilization generally and in the

development of the American legal tradition in particular.

See, eg., Stone v. Graham, 449 U.S. 39, 45 (1980)

(Rehnquist, J., dissenting) (“It is equally undeniable . . . that

the Ten Commandments have had a significant impact on the

development of secular legal codes of the Western World.”);

City of Elkhart v. Books, 121 S. Ct. 2209, 2211-12 (2001)

(Rehnquist, C.J., dissenting from denial of certiorari) (stating

that the Commandments “have made a_ substantial

contribution to our secular legal codes” and recognizing that

Elkhart’s monument “simply reflects the Ten Command-

ments’ role in the development of our legal system”); County

of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S.

573, 652-53 (1989) (Stevens, J., concurring in part and

dissenting in part) (stating that the frieze on the south wall of

the Court’s courtroom depicting Moses holding the Ten

Commandments “signals respect not for great proselytizers

but for great lawgivers”). This case asks whether

governments may display the Ten Commandments to

memorialize that crucial historical role.

Last term the Court, over a dissent joined by three

justices, denied certiorari in another government Ten Com-

' See also, e.g., Russell Kirk, The Roots of American Order 29, 45

(1974) (writing that, “from Israel, even more than from the Roman juris-

consults, America inherited an understanding of the sanctity of law” and

that “Revelation in the Old Testament . . . is the form of revealed truth

upon which American order depends”) (footnote omitted).

3

mandments display case, City of Elkhart, 121 S. Ct. at 2210

(Rehnquisi, C.J., joined by Scalia and Thomas, JJ.,

dissenting from the denial of certiorari). But many other

state and local governments across the country display (or

wish to display) the Ten Commandments. Despite repeated

litigation of the issue, the lower courts (including the courts

of appeals) continue to be divided on whether such displays

are permissible. See, e.g., App. 38a (noting “the profusion

and confusion reflected in the case law and in Supreme

Court precedent”). And, unlike the monument in City of

Elkhart, the monument in this case was specifically designed

to include other historical texts in order to display the

Commandments as part of a broader display of historical

texts having an influence on the laws of the State of Indiana,

and on the Nation as a whole. Certiorari is therefore

warranted to resolve the lower courts’ conflicts on the

important and recurring issue of when the government may

display the Ten Commandments.

1. On March 14, 2000, Indiana Governor Frank

O’Bannon accepted for display on the Indiana Statehouse

lawn a monument donated by the Indiana Limestone Institute

featuring the Ten Commandments, the Bill of Rights, and the

Preamble to the 1851 Indiana Constitution.” App. 2a, 3a, 8a.

The monument, to be located among numerous other

historical markers, was intended to replace another Ten

Commandments monument donated by the Fraternal Order

of Eagles in 1958 that sat on the Statehouse lawn until it was

2 The Preamble to the 1851 Indiana Constitution states:

To the end, that justice be established, public order maintained,

and liberty perpetuated: We the People of the State of Indiana,

grateful to Almighty God for the free exercise of the right to

choose our own form of government, do ordain this

Constitution.

App. 4a. The Preamble is not identified as such on the monument. /d.

4

vandalized in 1991. App. 2a, 4a. Respondent Stephen

Schroeder was convicted of spray-painting, breaking, and

toppling the prior monument. App. 68a; see also Susan

Dillman, Decalogue Display Under Challenge, South Bend

Tribune, May 19, 2000, at Dl, availatle at 2000 WL

20362744.

The new monument has four sides and is seven feet tall,

six feet, seven inches wide, and four feet, seven inches deep.

App. 3a. The Ten Commandments and Bill of Rights each

occupies one of the larger sides, with the top arched in the

form traditionally used to depict the stone tablets Moses

carried from the top of Mount Sinai. App. 3a, 4a. The

Preamble to the Indiana Constitution is printed on one of the

smaller sides. App. 4a. The other smaller side of the new

monument states: “Gift of the Indiana Limestone Industry—

2000 A.D. This Monument replaces one donated by the

Aeries and Auxiliaries of the Indiana Fraternal Order of the

Eagles on October 25, 1958.” App. 4a.

The portion of the Indiana Statehouse lawn where the

monument is to be placed is about 1.93 acres in size. App.

64a. It features twelve other historical markers, including

two monuments honoring the National Road (U.S. 40, which

formerly ran adjacent to the Statehouse lawn), a monument

honoring Indiana women, two friezes depicting Civil War

scenes, a marker showcasing the history of the Statehouse,

statues of Christopher Columbus, George Washington,

Robert Dale Owen, a coal miner, Vice-President and

Governor Thomas A. Hendricks and Governor Oliver H.P.

Morton. App. 5a, 22a, 30a. The Statehouse lawn also has

seven dedicated trees. App. Sa.

When he accepted the monument, Governor O’Bannon

remarked that the new monument was intended to “be an

integral part of the Statehouse setting, which honors the

history of our state and nation.” App. 8a, 72a. The prior

5

monument, said the Governor, “stood on the Statehouse lawn

as a reminder of some of our nation’s core values.” App.

71a. On the new monument, he said, the Ten Command-

ments “will stand alongside the abiding principles of our

form of government, especially its protections of individual

rights. ... They’re ideals we all need to be reminded of

from time to time.” Jd.

2. In May 2000, plaintiffs filed this action under 42

U.S.C. § 1983 alleging that the Governor’s acceptance of the

new monument and his plan to place it on Statehouse

grounds violated the Establishment Clause. App. Sa.

Because the plaintiffs alleged a violation of the U.S.

Constitution and section 1983, the district court had federal

question jurisdiction under 28 U.S.C. § 1331. Plaintiffs

sought a preliminary injunction against displaying the

monument, and on July 28, 2000, the district court entered a

preliminary injunction prohibiting the Governor from

displaying the monument on the Statehouse lawn. App. 28a.

Applying the general framework used in Lemon v.

Kurtzman, 403 U.S. 602 (1971), and more particularly the

endorsement test articulated in Lynch v. Donnelly, 465 U.S.

668, 687-94 (1984) (O’Connor, J., concurring), the district

court examined “‘whether, irrespective of government’s

actual purpose, the practice under review in fact conveys a

message of endorsement or disapproval.’” App. 48a (citation

omitted). The district court concluded that reasonable

observers would view the monument as a state endorsement

of religion for two central reasons: (1) the text of the Ten

Commandments is too isolated by appearing alone on one of

the two wider surfaces of the monument; and (2) there was

no “explanatory marker” linking the discrete texts appearing

on the monument. App. 55a-56a. The district court also

concluded that, even if passersby could not read the

monument without approaching it, the monument’s tablet

6

shape would convey its religious character from a distance.

App. 57a.

Further, although it acknowledged that the government’s

secular purpose “need not be the exclusive purpose” behind

the monument (App. 40a), the district court necessarily

found that, in light of the monument’s design, Governor

O’Bannon’s stated secular purpose was a disingenuous

sham. Compare id. with App. 47a.

3. A divided panel of the Seventh Circuit affirmed the

preliminary injunction. Applying the purpose and effect

prongs of the Establishment Clause test provided in Lemon v.

Kurtzman, 403 U.S. 602 (1971), the court, notwithstanding

the Governor’s statement that the monument was intended to

“be an integral part of the Statehouse setting, which honors

the history of our state and our nation” (App. 72a), held that

“(t]he Ten Commandments is still an inherently religious

text, and we conclude that the State has not articulated a

valid secular justification for planning to erect the

monument.” App. 9a. The court reasoned that the Ten

Commandments “are historical, secular ‘core values’ only to

those who adhere to them” and that the monument therefore

reflected a religious purpose. Jd. “Moreover,” the court

ruled, “the monument’s physical design belies any

suggestion that these texts are presented as a whole to

remind viewers of the core values and legal ideals of our

nation.” Jd. °

> Though the Seventh Circuit affirmed the district court “pending

resolution on the merits” (App. 13a), the court also bluntly stated that

“we are hard-pressed to believe that a trial on the merits will support a

different conclusion.” App. 12a-13a (citation omitted). For this reason,

and because the case was presented to the district court mostly on a

stipulated record (App. 28a), this case is as ready for review by the Court

as if final judgment had been entered. Cf Ashcroft v. ACLU, 121 S. Ct.

1997 (2001) (granting certiorari to review case at preliminary injunction

7

In addition, the court stated that “(t]he permanence,

content, design, and context of the monument amounts to the

endorsement of religion by the state.” App. 12a. The court

recognized that “the grounds house other statues and

monuments” and indeed “are somewhat akin to a museum.”

App. 10a. Nonetheless, the court thought that the monument

would convey the message of endorsement of religion

because, among other reasons, it is tablet-shaped and the

Commandments are inscribed in one-inch capital letters

while the-Bill of Rights (owing to its lengthier text) is in-

scribed in five-eighths-inch capital letters on the opposite

side. App. 1 la.

The court also was troubled that the side of the

monument featuring the Ten Commandments was not

“visually connected” to the sides featuring the Bill of Rights

and the 1851 Indiana Preamble, and thus that a reasonable

observer “would be hard-pressed to make any analytical

connection between the texts... .” App. lla-12a. Yet at

the same time the court also worried that “an observer who

views the entire monument may reasonably believe that it

impermissibly links religion and law since the Bill of Rights

and the 1851 Preamble are near the sacred text. This would

signal that the state approved of such a link, and was sending

a message of endorseinent.” App. 12a.

4. In dissent, Judge Coffey criticized the majority for

“seem[ing] to go out of its way to second guess Governor

O’Bannon’s stated purpose for the proposed monument in an

attempt to discredit that purpose.” App. 20a. He stated that

“{s]imply because some religious meaning is conveyed by a

monument does not destroy a state’s valid secular purposes

for its display.” App. 16a (citations omitted).

stage); City of Indianapolis v. Edmond, 528 U.S. 1153 (same), aff'd, 531

US. 32 (2000).

8

In Judge Coffey’s view, the monument’s presentation of

the Ten Commandments with the Bill of Rights and the 1851

Preamble distinguishes this monument. By including three

historical texts, the monument “presents three important

steps in the development of the law as they affect 1) the

people of the world; 2) the citizens of the United States; and

3) the citizens of the State of Indiana.” App. 18a.

Accordingly, to Judge Coffey, the overall message of the

monument is secular, not religious. See App. 20a-23a.

Furthermore, according to Judge Coffey, “the layout of

the monuments that adorn the Statehouse lawn also serves to

diminish any perceived endorsement of religion... .” App.

22a. With twelve other monuments, busts, and friezes, “the

Statehouse lawn is an area dedicated to monuments that pay

due homage to both the state’s and the nation’s history that

serves to situate the monument in an appropriate cultural and

historical context.” Jd. This context, in Judge Coffey’s

view, “only serves to reinforce the secular nature of the

monument in question as set forth and clearly delineated in

Governor O’Bannon’s press release.” App. 23a.

In sum, Judge Coffey reasoned:

If the Ten Commandments properly convey a secular

message when adorning the wall of a Federal

Courtroom, I cannot understand how the State of

Indiana’s proposed placement of the three-sided

monument amidst twelve other secular symbols of

the nation’s legal and cultural history fails to

similarly convey a secular message.

App. 17a.

9

REASONS FOR GRANTING THE PETITION

I. THE DECISION BELOW EXACERBATES A CON-

FLICT AMONG THE SEVENTH CIRCUIT, THE

TENTH CIRCUIT AND THE COLORADO

SUPREME COURT

The Seventh Circuit’s decision directly conflicts with

holdings of the Tenth Circuit and the Colorado Supreme

Court that the Establishment Clause permits government to

display the Ten Commandments.

In Anderson v. Salt Lake City Corp. 475 F.2d 29 (10th

Cir. 1973), the court upheld a city’s display on courthouse

grounds of a Ten Commandments monument.’ Anderson

recognized that “the Decalogue is at once religious and

secular” and that “an ecclesiastical background does not

necessarily mean that the Decalogue is primarily religious in

character—it also has substantial secular attributes.” Jd. at

33. Anderson also stated that the display was “a depiction of

a historically important monument with both secular and

sectarian effects.”. Id. at 34. Indeed, Anderson found the

Ten Commandments monument—which, unlike the

monument at issue here, included no other historical

documents—to be “primarily secular.” Jd.

This ruling conflicts with the Seventh Circuit’s holding

that “the Ten Commandments is . . . an inherently religious

text” (App. 9a) and that the inclusion of the Bill of Rights

4 Anderson remains the controlling Tenth Circuit authority concerning

government displays of the Ten Commandments. See Summum v. City of

Ogden, 152 F. Supp. 2d 1286, 1294 (D. Utah 2001); see also Books v.

City of Elkhart, 235 F.3d 292, 318 & n.4 (7th Cir. 2000) (Manion, J.,

dissenting) (relying on Anderson and explaining why Anderson’s holding

is not affected by Stone v. Graham, 449 U.S. 39 (1980) (per curiam)),

cert. denied, 121 S. Ct. 2209 (2001).

10

and the 1851 Preamble along with the Ten Commandments

would infect those secular texts with a religious aura rather

than emphasize the overall secular nature of the monument.

App. 12a. This ruling cannot be squared with Anderson’s

holding that the Ten Commandments is a_ secular

“foundation for law” that merely happens to “reflect the

religious nature of an ancient era,” that the government may

display. Anderson, 475 F.2d at 34.°

The Seventh Circuit’s decision also conflicts with the

decision of the Colorado Supreme Court in State of Colorado

v. Freedom From Religion Foundation, Inc., 898 P.2d 1013

(Colo. 1995) (en banc), which approved a Ten Command-

ments monument on the grounds of the Colorado State

Capitol. There, the court was persuaded that the Ten

Commandments convey secular history because they have

“served over time as a basis for our natural law” and the

moral standards they articulate “have played a large role in

the development of the common law and have formed a part

of the moral background for the adoption of the national

constitution.” Jd. at 1024 (recounting undisputed testimony).

The Seventh Circuit, however, concluded that the Ten

Commandments are “inherently religious” and therefore do

not reasonably communicate a secular historical message

(App. 9a), a ruling that cannot be squared with Colorado.

Indeed, Colorado embraced the government’s secular

role in communicating the complete history of our nation—

even the religious part: “[D]ue to our past it would be

inaccurate to ignore a history that includes religion.”

Colorado, 898 P.2d at 1025. Thus, while the Seventh Circuit

intimated that the government could post the Ten

° See also Suhre v. Haywood County, 55 F. Supp. 2d 384, 397 (W.D.

N.C. 1999) (upholding a courtroom display featuring the Ten Command-

ments, Lady Justice and the flags of North Carolina and the United States

because it “touts nothing more than an effort to recall the origin of

modern law, by reference to an ancient source of law and justice”).

11

Commandments only if it first excised references to God or

religion (App. 9a), the Colorado Supreme Court concluded

that barring a government display of the Ten

Commandments merely because of such references would

inappropriately require “callous indifference” to religious

groups and prefer “non-believers over believers.” See

Colorado, 898 P.2d at 1026.

And unlike the Seventh Circuit, compare App. 10a-13a,

Colorado also found that the Ten Commandments

monument communicated secular history because it was

displayed among other monuments representing “a

comucopia of different cultural events and experiences that

make up the history of our nation and reflect upon a history

that is also Colorado.” Colorado, 898 P.2d at 1025. The Ten

Commandments monument itself, while it featured no other

historical texts, included Christian, Jewish, and Egyptian

symbols, as well as a bald eagle and an American flag.

These features, Colorado ruled, “sufficiently neutralize [the

Ten Commandments’] religious character resulting in neither

an endorsement nor a disapproval of religion.” Jd. at 1019.

The decision below is thus fundamentally in conflict with

the decisions in Anderson and Colorado. The Court should

grant certiorari to resolve this conflict.

Il. THE PERMISSIBILITY OF GOVERNMENT TEN

COMMANDMENTS DISPLAYS IS AN IMPOR-

TANT AND RECURRING ISSUE

Several challenges to government Ten Commandments

displays are pending in many jurisdictions, and all will

benefit from guidance from the Court. See Adland v. Russ,

107 F.Supp. 2d 782 (E.D. Ky. 2000), appeal pending, No.

00-6139 (6th Cir. argued Nov. 2, 2001); Doe v. Harlan

County, 145 F.Supp. 2d 845 (E.D. Ky. 2001), appeal

pending, No. 01-5935 (6th Cir. filed July 26, 2001); ACLU v.

12

McCreary County, 145 F.Supp. 2d 845 (E.D. Ky. 2001),

appeal pending, No. 01-5935 (6th Cir. filed July 26, 2001);

ACLU v. Pulaski County, 145 F.Supp. 2d 845 (E.D. Ky.

2001), appeal pending, No. 01-5935 (6th Cir. filed July 26,

2001); ACLU v. Garrard County; No. 01-CV-481 (E.D. Ky.

filed Nov. 27, 2001); ACLU v. Grayson County, No. 01-CV-

202 (W.D. Ky. filed Nov. 27, 2001); ACLU v. Mercer

County, No. 01-CV-480 (E.D. Ky. filed Nov. 27, 2001);

ACLU v. Rowan County, No. 01-CV-220 (E.D. Ky. filed

Nov. 27, 2001); Hoffman v. City of Mishawaka, No. 3:01-

CV-00780 (N.D. Ind. filed Nov. 2, 2001); Glassroth v.

Moore, No. 01-CV-1268 (M.D. Ala. filed Oct. 30, 2001);

Freethought Society v. Chester County, No. 01-CV-5244

(E.D. Pa. filed Oct. 16, 2001); ACLU v. Plattsmouth, No.

4:01-CV-3109 (D. Neb. filed May 17, 2001); Christian v.

City of Grand Junction, No. 01-CV-685 (D. Colo. filed Apr.

16, 2001); Modrovich v. Allegheny County, No. 2:01-CV-

531 (W.D. Pa. filed Mar. 20, 2001); ACLU of Ohio v.

Ashbrook, et al., No. 1:01-CV-556 (N.D. Ohio filed Mar. 8,

2001); King v. Richmond County, No. 00-CV-100 (S.D. Ga.

filed May 12, 2000); Baker v. Adams County, No. C-1-99-

094 (S.D. Ohio filed Feb. 2, 1999).

In addition, there are hundreds of government Ten

Commandments displays across the country. See Books v.

City of Elkhart, 235 F.3d 292, 294-95 (7th Cir. 2000)

(describing the efforts of the Fraternal Order of Eagles to

donate monuments of the Ten Commandments to be

displayed on government property across the country), cert.

denied, 121 S. Ct. 2209 (2001). Given the frequency with

which the ACLU’s chapters have sued to enjoin these

omnipresent displays, it is reasonable to expect that many

more lawsuits will follow.

Government interest in displaying the Ten Command-

ments only continues to grow. At least five states have

enacted legislation authorizing displays of the Ten

13

Commandments in historical contexts on public grounds or

in public schools. See Ind. Code §§ 4-20.5-21-2 (West Supp.

2001) and 36-1-16-2 (West Supp. 2001); Ky. Rev. Stat. §

158.195 (Michie 2001); N.M. Stat. §§ 22-15-15 te 22-15-20

(Michie 2001); N.C. Gen. Stat. § 115C-81(g)(3b) (1999);

and S.D. Codified Laws § 13-24-17.1 (Michie Supp. 2001).

Furthermore, in the last two years, legislatures in Alabama,

Colorado, Florida, Georgia, Illinois, Maine, Michigan,

Mississippi, Missouri, North Carolina, North Dakota,

Oklahoma, Oregon, Pennsylvania and Tennessee ll

reportedly considered taking steps to support, permit or

require government or public school displays of the Ten

Commandments. Hanna Rosin, William Claiborne, Taking

the Commandments Public; Indiana Passes Bill Allowing

Display in Schools, Other Government Facilities, The

Washington Post, Feb. 8, 2000, at A3; Americans United For

Separation of Church and State: State Legislative Update For

The 2001 Sessions, at. http://www.au.org/states.htm (last

visited December 26, 2001). Such legislative approaches are

part of a more general movement to post the Ten

Commandments in government buildings and public schools.

Rosin and Claiborne, supra.

Similarly, Congress has recently considered legislation

endorsing government displays of the Ten Commandments.

In 1999, the House of Representatives passed the Ten

Commandments Defense Act, which would have recognized

the abilities of state and local governments to post the Ten

Commandments in public places. H.R. 1501, 106th Cong. §

1202 (1999). The larger bill of which the Act was a part

died thereafter, but the House’s passage of the Ten Com-

mandments Defense Act demonstrates the growing

importance of the issue to many public officials.

In sum, a decision from the Court addressing when

governments may display the Ten Commandments is of

great and growing importance.

14

Ill. THE DECISION BELOW IS WRONG

A. The Court Misapplied The Endorsement Test

The Seventh Circuit’s decision would prohibit nearly any

government display of the Ten Commandments and

accordingly is at odds with Lynch v. Donnelly, 465 U.S. 668

(1984), and County of Allegheny v. ACLU Greater Pitts-

burgh Chapter, 492 U.S. 573 (1989).

Lynch held that government may display a créche on

public property while depicting the historical origins of

Christmas as a National Holiday. Lynch, 465 U.S. at 680,

687. Similarly, Allegheny approved a display of a Christmas

tree and a Menorah, erected near a sign saluting liberty, in

front of a city-county building. See 492 U.S. at 578, 621.

The Menorah-Christmas tree presentation—unlike the stand-

alone créche that Allegheny invalidated—conveyed messages

that were sufficiently secular to avoid any endorsement of

the Christian and Jewish faiths or any establishment of

religion. Jd. at 616 (opinion of Blackmun, J.); see also id. at

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

judgment); id. at 655 (Kennedy, J., concurring in the

judgment in part and dissenting in part).

Rather than being exclusively, or even “inherently”

religious, the Ten Commandments is at least as (if not more)

susceptible to a historic, secular presentation as a créche, a

Christmas tree, and a Menorah. While it invalidated a law

requiring the Ten Commandments to be posted in

schoolrooms, Stone v. Graham, 449 U.S. 39 (1980) (per

curiam), did not foreclose government displays of the Ten

Commandments in contexts that better communicated their

historical, rather than religious, significance. The constitu-

tional problem in Stone, which must be understood in the

context of inculcating school children, was that the

Commandments were posted alone on a schoolroom wall, a

15

circumstance that induced students to meditate on them

during the school day. See Stone, 449 U.S. at 42; see also

City of Elkhart v. Books, 121 S. Ct. 2209, 2211 (2001)

(Rehnquist, C.J., dissenting from denial of certiorari). But

Stone expressly recognized that the Ten Commandments

“may constitutionally be used in an appropriate study of

history, civilization, [or] ethics... .” Stone, 449 U.S. at 42.

And Edwards v. Aguillard, 482 U.S. 578, 593-94 (1987),

recognized that Stone “did not mean that no use could ever

be made of the Ten Commandments, or that the Ten

Commandments played an exclusively religious role in the

history of Western Civilization.”

The Seventh Circuit, however, erroneously ruled that the

Ten Commandments is “inherently religious” to the

exclusion of any secular significance, despite the presence of

other historical texts and monuments. It held, contrary to the

rationales of Lynch and Allegheny, that the presence of

secular texts accompanying the monument—the Bill of

Rights and the 1851 Preamble—underscores religious

endorsement. App. 12a. Under that view, no Ten Com-

mandments display on the Statehouse lawn would pass

muster. Any attempt to emphasize the Commandments’

historical importance by displaying them with historical

government documents would be met with an

“impermissible link” rejoinder. See id.

Our Constitution “affirmatively mandates accom-

modation, not merely tolerance, of all religions, and forbids

hostility toward any.” Lynch, 465 U.S. at 673 (citations

omitted); see also Allegheny, 492 U.S. at 631 (O’Connor, J.,

concurring in part and concurring in the judgment) (“Clearly,

the government can acknowledge the role of religion in our

society in numerous ways that do not amount to an

endorsement.”). The Seventh Circuit’s opinion fails to

apprehend that the Constitution does not require complete

exclusion of all references to religion from the public square.

16

Quite to the contrary: It effectively bans references to

religion from the public square.

B. The Court Misapplied The Secular Purpose Rule

The Seventh Circuit also misapplied the rule that the

State must have a secular purpose in displaying the Ten

Commandments. See Lemon v. Kurtzman, 403 U.S. 602, 612

(1971). Lynch held that a state’s purpose in displaying a

religious symbol is valid unless it is “motivated wholly by

religious considerations.” Lynch, 465 U.S. at 680 (emphasis

added); see also City of Elkhart v. Books, 121 S. Ct. 2209,

2212 (2001) (Rehnquist, C.J., dissenting from denial of

certiorari) (“In determining whether a secular purpose exists,

we have simply required that the displays not be ‘motivated

wholly by religious considerations.’” (quoting Lynch, 465

U.S. at 680)). The Seventh Circuit instead evaluated

whether the State’s purpose in erecting the challenged

monument was “primarily secular.” App. 9a. Further, the

court ignored the principle that federal courts reviewing

Establishment Clause claims are “reluctan[t] to attribute

unconstitutional motives to the states, particularly when a

plausible secular purpose for the state’s program may be

discerned .. . .” Mueller v. Allen, 463 U.S. 388, 394-95

(1983). Rather than defer to the Governor’s stated secular

purpose that the monument was to be “an integral part of the

Statehouse setting, which honors the history of our state and

our nation” (App. 72a), the court necessarily (and

improperly) treated those statements as a sham. See

Edwards, 482 U.S. at 586-87 (“the Court is normally

deferential to a state’s articulation of a secular purpose”

unless it is a “sham”).

The court’s further pronouncement that the Ten Com-

mandments “are historical, secular ‘core values’ only to

those whoadhere to them” (App. 9a) is wholly without

foundation. The Ten Commandments’ role in_ the

17

development of Western law and civilization is a matter of

historical fact, not a tenet of religious belief. “Historically

speaking, such are the Hebraic roots of American order,

whether or not the reader of this book wholly accepts the

Law and the prophets.” Russell Kirk, The Roots of American

Order 38 (1974). To deem the Ten Commandments

inappropriate for a government historical display simply

because it has both religious and historical import is to insist

on inaccurate and incomplete public displays of history.

Finally, the court also concluded that, “since each text

stands apart, the monument’s physical design belies any

suggestion that these texts are presented as a whole to

remind viewers of the core values and legal ideals of our

nation.” App. 9a. But, as discussed above, the court also

worried that the close association of the Bill of Rights and

the 1851 Preamble with the Ten Commandments suggested

endorsement. App. 12a. Had the court simply deferred to

the Governor’s purpose unless it was wholly religious, it

could have avoided this contradiction.

C. Displaying The Ten Commandments Does Not

Establish Religion Any More Than Other Accept-

able Government Religious References

As Judge Coffey observed in dissent, “[w]here a

religious symbol has a landmark foundation and meaning in

the history of our country,” the government may display the

symbol regardless of analysis under Lemon or the endorse-

ment test. App. at 23a-24a. For example, a legislature may

hire a chaplain to conduct legislative prayer without

explicitly satisfying Lemon. Marsh v. Chambers, 463 U.S.

783, 792 (1983)). Similarly, the “common sense of the

matter”’—and not necessarily rigorous analysis under

Lemon—permits, for example, the Court to open its sessions

with “God save the United States and this Honorable Court”

and for the currency to bear the motto “In God We Trust.”

18

Zorach v. Clausen, 343 U.S. 306, 312-123 (1952); see also

Marsh, 463 U.S. at 792; App. 25a.

Such practices are acceptable without reference to Lemon

because each “is simply a tolerable acknowledgement of

beliefs widely held among the people of this country.”

Marsh, 463 U.S. at 792. Further, the “history and ubiquity”

of these practices enables them to convey a message related

to common secular culture rather than religion. See Lynch,

465 U.S. at 693 (O’Connor, J., concurring). For the same

reasons, displaying the Ten Commandments on government

property as part of a broader historical commemoration is

permissible. See Suhre v. Haywood County, 55 F. Supp. 2d

384, 392, 397 (W.D. N.C. 1999) (recounting testimony that

the Ten Commandments are “part of public life” and

concluding that a historic government display of the Ten

Commandments is “more secular” than other “ceremonial

dieisms”’ [sic] that are permissible).

Here, Governor O’Bannon has simply decided to display

the Ten Commandments on the Statehouse lawn. How is

that an establishment of religion? As a mere “passive

acknowledgement” of the role of the Ten Commandments in

society, the monument here benefits religion no more than

_ other religion-related “practices that are accepted in our

national heritage.” Allegheny, 492 U.S. at 662-63 (Kennedy,

J., concurring in the judgment in part and dissenting in part).

Justice Brennan’s dissent in Marsh underscores this

point. Even though he disapproved of legislative prayer

because it is a religious act, Justice Brennan allowed that

“the text of Abraham Lincoln’s Second Inaugural Address

which is inscribed on a wall of the Lincoln Memorial need

not be purged of its profound theological content.” Marsh,

463 U.S. at 811 (Brennan, J., dissenting). The State’s

monument is acceptable in the same way because it does not

coerce adherence and represents “merely an acknowledge-

19

ment of the historical fact that the Ten Commandments

served as an integral part of the foundation for our country’s

legal system.” App. 26a. The State’s monument thus poses

“no greater potential for establishment of religion” than

Lincoln’s address—or, for that matter, the depictions of

Moses holding the Ten Commandments on the south wall of

the Court’s courtroom and on the Supreme Court building’s

East Pediment. See Allegheny, 492 U.S. at 670 (Kennedy, J.,

concurring in the judgment in part and dissenting in part);

see also id. at 652-53 (Stevens, J., concurring in part and

dissenting in part).

Our Founders created secular government and prohibited

government establishment of religion, but the Ten Com-

mandments profoundly influenced those Founders as well as

the endurance of the Republic. The State’s monument—with

its seminal secular charters of state and federal government,

set among numerous markers honoring the history of the

State of Indiana and the Nation—merely commemorates the

profound historical influence of the Commandments. Such

commemorations establish no religion whatever, and so are

fully consonant with the First Amendment.

20

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Office of the Indiana STEVE CARTER

Attorney General Attorney General

IGC South, Fifth Floor THOMAS M. FISHER*

402 West Washington Street Special Counsel

Indianapolis, IN 46204 JAMES B. MARTIN

317-232-6201 Deputy Attorney General

*Counsel of Record Counsel for Petitioner

Dated: December 28, 2001