Petition for Writ of Certiorari — Vasquez v. LOS ANGELES COUNTY, CA

Supreme C S.

brome Cour U.S

ee

No. — 07-427 SEP 26 2007

OFFICE OF THE CLERK

In The

Petitioner,

Vv.

LOS ANGELES COUNTY (“LA County”),

DON KNABE, GLORIA MOLINA, YVONNE B.

BURKE, ZEV YAROSLAVSKY, and MICHAEL D.

ANTONOVICH, in their official capacities as

Supervisors, LA County,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT JOSEPH MUISE

Counsel of Record

THoMaAS More Law CENTER

24 FRANK LLOYD WRIGHT DRIVE

P.O. Box 393

ANN ArBor, MI 48106

(734) 827-2001

Counsel for Petitioner

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

i

QUESTIONS PRESENTED

This Court’s flawed Establishment Clause

jurisprudence has promoted the removal of religious

symbols from public places and the purging from our

public conscience of Christianity’s role in our Nation’s

history. The current approach to deciding cases under

the Establishment Clause has created a jurisprudence

that is hostile toward religion. This case presents an

opportunity for the Court to abandon its much

maligned jurisprudence in favor of one that respects

our Nation’s religious heritage.

Petitioner Ernesto R. Vasquez is challenging the

Los Angeles County’s policy decision to remove a small

cross from its official seal. For nearly 50 years, the

cross on the county seal stood as a recognition of the

influence of the church and the missions of California.

In June 2004, however, this small cross became the

target of an official policy that singled it out for

removal simply because it was a Christian symbol.

1. Whether a constitutional challenge to a

government policy that targets a symbol for removal

from public places because it is Christian states a

claim under the Establishment Clause.

2. Whether the Ninth Circuit erred in dismissing

Petitioner’s complaint for failure to state a claim when

it weighed competing inferences drawn from the

factual allegations in the pleadings and accepted

Respondents’ contrary evidence.

Pace eer fd ae RNC WW WSO eer Ne NU WERENT HR OSLER Re pon ana ea a

ii

PARTIES TO THE PROCEEDING

The Petitioner is Ernesto R. Vasquez (“Petitioner”).

The Respondents are Los Angeles County (“LA

County”), Don Knabe, Gloria Molina, Yvonne B. Burke,

Zev Yaroslavsky, and Michael D. Antonovich, in their

official capacities as Supervisors, LA County

(“Respondents”).

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED ................... i

PARTIES TO THE PROCEEDING ............ li

EP GPIRPEIEOTEE 6 0c och ce vae vce seen ill

TABIA OF AUTHORITIES ... 1. cc cecvccsees Vv

I OO eng coe 664 NO ed aed ewe 1

eR es eb ho Keke hea e ee coe 1

CONSTITUTIONAL PROVISION INVOLVED .. 1

STATEMENT OF THE CASE ................ 1

REASONS FOR GRANTING THE PETITION ... 5

I. THE ESTABLISHMENT CLAUSE

SHOULD NOT TOLERATE POLICY

DECISIONS THAT EXHIBIT HOSTILITY

TOWARD OR DISFAVOR OF THE

CHRISTIAN RELIGION ............... 5

Il. THE PANEL’S DECISION EVISCERATES

CLAIMS ADVANCED UNDER A

HOSTILITY TOWARD RELIGION

BPO ner re earn te Ory a eae ean 7

iil.

iV

THIS COURT SHOULD REVERSE AND

REMAND BECAUSE THE PANEL BELOW

DID NOT APPLY THE PROPER

STANDARD UNDER FED. R. CIV. P.

12(b)(6) WHEN IT DISMISSED

PETITIONER’S COMPLAINT FOR

FAILURE TO STATE ACLAIM ........ 12

THE COURT’S CURRENT

ESTABLISHMENT CLAUSE

JURISPRUDENCE IS IN DISARRAY AND

LEADS TO INCONSISTENT RESULTS

THAT PROMOTE HOSTILITY TOWARD

I in 6-8 ek en ae eS 19

CRI nso ks ed po heed eke ee dene 21

APPENDIX

Appendix A: 7/5/07 Circuit Court Order ..... la

Appendix B: 5/15/07 Circuit Court Opinion .. 3a

Appendix C: 10/19/04 District Court Order

Granting Defendants’ Motion To Dismiss First

pe a ee rene res 29a

Appendix D: 8/10/04 First Amended Complaint

For Declaratory and _ Injunctive Relief

Pursuant to 42 U.S:C. $3963 ........... 53a

Vv

TABLE OF AUTHORITIES

Cases

ACLU v. Schundler,

166 F.3d 92 (3rd Cir. 1999) ..... 2... 2 c5ee. 20

ACLU v. Mercer County,

432 F.3d 624 (6th Cir. 2005) ........... 11, 16

American Family Ass'n v. City & County of San

Francisco,

ari Foe 1124 en Cir. S002) ... ee ees 10

Bauchman v. West High Sch.,

192 F.3d 642 (10th Cir. 1997) ............. 20

Bell Atlantic Corp. v. Twombly,

ee ee SOD sd o.9's 6h coe heeweeees 13

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah,

CE vcs pc ss a oc cba wwe wa 6,9

Committee for Pub. Educ. & Religious Liberty v.

Nyquist,

ee SOIR so cv obs ee} ea ewe 9

Conley v. Gibson,

te NES 6 ov ares 4 ila cs wivin o 6 6 eas 13

County of Allegheny v. ACLU,

Oe ee Fe CRED ove ciceweewseue 9, 17, 19

vi

Doe v. Duncanville Indep. Sch. Dist.,

994 F.2d 160 (Sth Cir. 1993) .............. 20

Edwards v. Aguillard,

ge Bs ek: Se na eae 9,17, 19

Elk Grove Unified Sch. Dist. v. Newdow,

ee EE ik. np Won cs bho bes 19

Ellis v. City of La Mesa,

990 F.2d 1518 (9th Cir. 1993) ............. 18

Erickson v. Pardus,

Ree Aes Se OE 6 068 cee ee ees ne Geek 13

Lamb's Chapel v. Center Moriches Union Free Sch.

Dist.,

ee ela OEE och eekéerweduoeuuees 19

Lynch v. Donnelly,

te ek | ee 6,7,9,17

McCreary County v. ACLU,

AF Oe 6 sve eee reer s vueses 16, 17

Murray v. City of Austin,

S47 F.20 147 (Gth Cir. 1901) ....... 220s: 10

O'Connor v. Washburn Univ.,

416 F.3d 1216 (10th Cir. 2005) ............ 11

Rosenberger v. Rector & Visitors of Univ. of Virginia,

ee ee ee LEE hk AN Sire See Oren ber 9, 19

Vil

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

Oe Ee ee ee 6 6. 5 oa eee 5,18

School Dist. of Auington Township v. Schempp,

BTS ae Oe RED hv a ooh eens © ee eae 8

Van Orden v. Perry,

ee 07 A I kx sk ch ce ee 10, 16

Vernon v. City of Los Angeles,

27 F.36 1966 Gti Cir. 1004) . 2.2 ae 11

Wallace v. Jaffree,

Pp pet ay 85. & See ee ee nen mre in cme Sate 19

Constitutional Amendments and Statutes

Ure Rs IEG A acc 0'oa ba kee eee ee eee ]

Be Ui aA RE? 0 bk hc eee ee eee 1

Rules

ree: Eh Cie. FG 6 ii encase 2 eee 12

FOR, Te SAE. Fs ROD is bos eee 6 eae eeee passim

1

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion, App. 3a, appears at 487 F.3d 1246.

The unpublished district court opinion appears at App.

29a.

JURISDICTION

The opinion of the panel was issued on May 15,

2007. A petition for panel rehearing and a petition for

rehearing en banc were denied on July 5, 2007. App.

la-2a. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Establishment Clause of the United States

Constitution provides that “Congress shall make no

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

Const. amend. I.

STATEMENT OF THE CASE

Petitioner is an adult resident of LA County, a state

and municipal taxpayer, and a citizen of the United

States. He is employed by the county and has daily

contact with the County of Los Angeles Official Seal

(“LA County Seal”). App. 6a, 8a, 55a.

Petitioner is a devout Christian, and he objects to

Respondents’ removal of the cross from the LA County

Seal because this official policy conveys a message of

disapproval of and hostility toward Christianity and

2

sends a clear message to him and other Christians

that they are outsiders, not full members of the LA

County community. Additionally, Petitioner objects to

the use of his tax money and the expenditure of

municipal and/or state funds and tax dollars to

support Respondents’ policy. App. 6a, 55a

Respondents Knabe, Molina, Burke, Yaroslavsky,

and Antonovich are Supervisors for Respondent LA

County and members of the LA County Board of

Supervisors, which is the governing body for LA

County. As Supervisors, these Respondents are

responsible for creating, adopting, and implementing

the policies, practices, and customs of LA County,

including the policy to remove the cross from the

county seal. App. 4a, 56a.

Respondent LA County officially adopted the

former LA County Seal in 1957. The seal was

displayed on county buildings, vehicles, flags,

stationary, forms, commendations, uniforms, and

elsewhere throughout the county. App. 14a, 56a-57a.

The revised seal without the cross is similarly

displayed.

The LA County Seal, as adopted in 1957, contained

symbols of historical and cultural significance to the

residents of the county and did not convey. an

impermissible, state-sponsored religious message.

Included in the LA County Seal was a small cross,

which represented the influence of the church and the

missions of California. The LA County Seal also

included an image of the goddess Pomona standing on

the shore of the Pacific Ocean with the San Gabriel

Mountains in the _ background; engineering

3

instruments that related to the industrial construction

complex of LA County and LA County’s contribution to

the conquest of space; a depiction of the San Salvador,

the Spanish galleon that Cabrillo sailed into San Pedro

Harbor on October 8, 1542; a tuna that represented

the fishing industry of LA County; a depiction of

Pearlette, a championship cow, which represented the

dairy industry; a depiction of the Hollywood Bowl,

which indicated cultural activities, with two stars

representing LA County’s motion picture and

television industry; and images of oil derricks that

were symbolic of the oil fields that were discovered on

Signal Hill. Surrounding the seal were the words

“County of Los Angeles California.” App. 4a-5a, 57a.

On June 1, 2004, Respondents created and adopted

an official policy of singling out the cross for removal

from the LA County Seal because it was a Christian

symbol. Pursuant to this policy, however, Respondents

did not single out the large and prominent image of the

polytheistic goddess Pomona for such treatment. App.

5a, 57a-58a.

The LA County Seal, as adopted in 1957, did not

convey an impermissible religious message; it

conveyed a historical and cultural message that was

important to county residents, including Petitioner.

However, by creating and adopting a policy that

targeted the cross for removal and exclusion as one of

the historical and cultural symbols of the seal because

it is a Christian symbol, Respondents have now

conveyed a message of hostility toward Christianity.

App. 4a-6a, 57a.

4

Respondents’ purpose for creating and adopting

their official policy to target the cross for disparate and

hostile treatment was anti-Christian and motivated by

hostility toward Christianity and its cultural and

historical significance to the residents of LA County.

App. 5a-6a. This policy was improperly influenced by

the American Civil Liberties Union (“ACLU”), an

organization with a reputation for seeking to remove

Christian symbols and Christian influences from

public places.’ App. 5a-6a, 57a-59a.

The effect of Respondents’ policy is to convey a

message of disfavor of and hostility toward

Christianity, thereby sending a message to Christians,

including Petitioner, that they are outsiders, not full

members of the political community. App. 6a.

As Petitioner alleged in his First Amended

Complaint, the implementation of Respondents’ policy

would cause additional and repeated injury to

Petitioner each day that he goes to work for LA County

or is otherwise exposed to the anti-Christian message

conveyed by the seal without the cross. As a

consequence of Respondents’ policy and _ its

implementation, Petitioner will alter his behavior to

avoid this additional, direct injury. Moreover,

Respondents’ anti-Christian policy is funded by and

has resulted in the expenditure of thousands of

municipal and/or state funds and tax dollars, causing

further direct injury to Petitioner. App. 6a, 8a, 56a,

59a-60a.

‘The ACLU did not object to the large image of the polytheistic

goddess Pomona.

5

After the filing of Petitioner’s First Amended

Complaint, Respondents implemented their policy and

removed the cross from the official county seal, thereby

causing the irreparable harm alleged in the First

Amended Complaint, including the harm caused by the

expenditure of thousands of tax dollars. And this

harm continues today.” App. 5a.

Petitioners timely filed a petition for panel

rehearing and a petition for rehearing en banc. On

July 5, 2007, the petitions were denied.

REASONS FOR GRANTING THE PETITION

I. THE ESTABLISHMENT CLAUSE SHOULD

NOT TOLERATE POLICY DECISIONS

THAT EXHIBIT HOSTILITY TOWARD OR

DISFAVOR OF THE CHRISTIAN

RELIGION.

This Court has previously stated that when

evaluating claims under the Establishment Clause

“the Constitution also requires that we keep in mind

the myriad, subtle ways in which Establishment

Clause values can be eroded and guard against other

different, yet equally important, constitutional

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

* Respondents also replaced the goddess Pomona with an “image

of a Native American Woman holding a basket.” App. 5a. And

they removed the images of the oil derricks and added the image

of a building claimed to be an image of a mission, which does not

contain across. App. 5a, 18a. These changes were not part of the

policy adopted on June 1, 2004, but were made subsequent to the

filing of this lawsuit and with the approval of the ACLU.

6

290, 314 (2000) (internal citation omitted). One such

way in which these “values” are eroded is by a

government policy decision that singles out religious

symbols for removal from public places because they

are Christian. An evenhanded application of prior

precedent should compel a reversal in this case.

Unfortunately, with little exception, the application of

this Court’s modern day Establishment Clause

jurisprudence has led the law to exhibit hostility

toward religion, thereby promoting such policy

decisions. Consequently, a substantial revision of this

Court’s jurisprudence is in order.

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

Court stated:

It has never been thought either possible or

desirable to enforce a regime of total separation.

Nor does the Constitution require complete

separation of church and state; it affirmatively

mandates accommodation, not merely tolerance

of all religions, and forbids hostility toward any.

Anything less would require the callous

indifference we have said was never intended by

the Establishment Clause. Indeed, we have

observed, such hostility would bring us into war

with our national tradition as embodied in the

First Amendment’s guaranty of the free exercise

of religion.

Id. at 673 (internal punctuation, quotations, and

citations omitted) (emphasis added); see also Church of

the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 532 (1993) (“In our Establishment Clause

cases we have often stated the principle that the First

7

Amendment forbids an official purpose to disapprove

of a particular religion or of religion in general.”)

(emphasis added).

Despite an occasional appearance of neutrality and

suggestion that the Constitution is not hostile toward

religion, the reality is that this Court’s Establishment

Clause jurisprudence is frequently used as a blunt

instrument against all thing religious—particularly

those that are Christian. This case is just such an

example.

While some on this Court still believe that our

Constitution “affirmatively mandates accommodation,

not merely tolerance of all religions, and forbids

hostility toward any,” Lynch, 465 U.S. at 673, this case

will afford the Court the opportunity to breathe new

and_ lasting life into this fundamental principle of

constitutional law that is largely ignored by the lower

federal courts. As this case shows, the Court’s

prophetic observation in Lynch that “[alnything less

would require the callous indifference [that] was never

intended by the Establishment Clause,” thereby

bringing “us into war with our national traditions” has

come to fruition. It is time to reverse this harmful and

divisive trend.

II. THE PANEL’S DECISION EVISCERATES

CLAIMS ADVANCED UNDER A

HOSTILITY TOWARD RELIGION

THEORY.

By dismissing Petitioner’s allegations of an illicit

purpose and effect and crediting Respondents’

contrary, self-serving assertion that they were simply

8

seeking to avert an Establishment Clause violation,

the panel’s decision creates a bright line rule that

essentially undermines all claims advanced under a

hostility toward religion theory. Permitting the

panel’s decision to stand would pave the road for

removing all religious imagery or references from

official recognition because they represent religion.

Banned from public use would be the eye in the Great

Seal of the United States (the eye of God in a pyramid

representing the Christian Trinity), “In God We Trust”

on our coinage, religious stamps the U.S. Postal

Service issues at Christmas and Easter, the many

white crosses marking the grave sites of our Nation’s

fallen veterans buried at National cemeteries, the

numerous war memorials containing crosses, and even

the names of our cities, including Los Angeles, San

Francisco, and Corpus Christi, and all official signs

and symbols on which these names appear. The

pernicious effect of the panel’s decision is clear. See,

e.g., School Dist. of Abington Township v. Schempp,

374 U.S. 203, 306 (1963) (concurring opinion) (noting

that an “untutored devotion to the concept of

neutrality” can lead to “a brooding and pervasive

devotion to the secular and a passive, or even active,

hostility to the religious”).

In this case, by removing a long-standing and

historically significant religious image from an official

seal because it is a symbol of Christianity,

Respondents have conveyed an impermissible message

of hostility toward, and disapproval of, religion. For

nearly five decades, the small cross on the LA County

Seal stood as the official recognition of the influence of

the church and the missions of California. In June

2004, however, this small cross became the target of

9

an official government policy that singled it out for

removal because it is Christian.

Throughout its decisions, this Court has

consistently described .the Establishment Clause as

forbidding not only state action motivated by a desire

to promote or “advance” religion, see, e.g., County of

Allegheny v. ACLU, 492 U.S. 573, 592 (1989), but also

actions that tend to “disapprove,” “inhibit,” or evince

“hostility” toward religion. See Edwards v. Aguillard,

482 U.S. 578, 585 (1987) (“disapprove”); Committee for

Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S.

756, 788 (1973) (“inhibi[t]”); Lynch, 465 U.S. at 673

(“hostility”). Our Constitution prohibits government

action that “foster[s] a pervasive bias or hostility to

religion, which could undermine the very neutrality

the Establishment Clause requires.” Rosenberger v.

Rector & Visitors of Univ. of Virginia, 515 U.S. 819,

846 (1995) (emphasis added); see Lynch, 465 U.S. at

668, 673 (stating that the Constitution “forbids

hostility toward any” religion); see also Church of the

Lukumi Babalu Aye, Inc., 508 U.S. at 532 (stating that

the Establishment Clause “forbids an official purpose

to disapprove of a particular religion or of religion in

general”).

A state-sponsored message of disapproval of

Christianity and its symbols, as evidenced by

Respondents’ policy, sends a message to Petitioner and

other Christians that their religion is disfavored in the

community. See County of Allegheny, 492 U.S. at 597.

The First Amendment mandates neutrality toward

religion and forbids hostility aimed at a particular

faith. Cf’ Church of the Lukumi Babalu Aye, Inc., 508

10

U.S. at 520 (striking down a law that targeted a

particular religious practice).

More recently, in Van Orden v. Perry, 545 U.S. 677

(2005), a case in which a plurality of justices upheld

the 40-year display of the Ten Commandments on the

grounds of the Texas State Capitol, Justice Breyer, in

his concurring opinion, stated,

[The removal of the religious symbol], based

primarily on the religious nature of the tablets’

text would, I fear, lead the law to exhibit a

hostility toward religion that has no place in our

Establishment Clause traditions. Such a

holding might well encourage disputes

concerning the removal of longstanding

depictions of the Ten Commandments from

public buildings across the Nation. And it could

thereby create the very kind of religiously based

divisiveness that the Establishment Clause

seeks to avoid.

Id. at 704.

While the language from these cases appears to

support a “hostility toward religion” claim, the

practical reality is that such claims are given little

traction by the lower courts, as this and other cases

demonstrate.’ See, e.g., American Family Ass’n v. City

* The Fifth Circuit has at least acknowledged that removing

Christian symbols, such as a cross, from all displays “evinces not

neutrality, but instead hostility, to religion.” Murray v. City of

Austin, 947 F.2d 147, 158 (5" Cir. 1991) (holding that the

or

11

& County of San Francisco, 277 F.3d 1114, 1124 (9"

Cir. 2002) (holding that San Francisco’s resolution

condemning a religious organization’s advertisement

opposing homosexuality did not violate’ the

Establishment Clause); Vernon v. City of Los Angeles,

27 F.3d 1385, 1396 (9" Cir. 1994) (stating that “[t]he

government neutrality required under the

Establishment Clause is . . . violated as much by

government disapproval of religion as it is by

government approval of religion,” but finding no

violation); O’Connor v. Washburn Univ., 416 F.3d 1216

(10" Cir. 2005) (upholding a government display of an

anti-Catholic statue against an Establishment Clause

challenge). At a minimum, there is much confusion in

the lower federal courts that only this Court can

clarify. See App. 23a (“We have noted that because it

is far more typical for an Establishment Clause case to

challenge instances in which the government has done

something that favors religion or a particular religious

group, we have little guidance concerning what

constitutes a primary effect of inhibiting religion.”)

(internal quotations and citation omitted).

As the case law would seem to suggest, singling out

the small cross on the LA County Seal for disfavored

treatment and removal because it is a symbol

associated with Christianity violates the

Establishment Clause mandate that government in

_-— ——s

inclusion of a Christian cross in the city insignia did not violate

the Establishment Clause); see also ACLU v. Mercer County, 432

F.3d 624, 638 (6" Cir. 2005) (upholding the public display of the

Ten Commandments and observing that the “repeated reference

to ‘the separation of church and state” is an “extra-constitutional

construct [that] has grown tiresome”).

12

our democracy must remain neutral and may not take

action that exhibits hostility toward a particular

religion.

In the final analysis, the panel’s decision

essentially eviscerates this plethora of case law

prohibiting government disapproval of or hostility

toward religion by allowing such claims to be

dismissed at the pleading stage based on nothing more

than Respondents’ bald, self-serving assertions. This

decision must be reviewed and reversed, allowing, at

a minimum, Petitioner to develop and present a full

record supporting his claims.

Iii, THIS COURT SHOULD REVERSE AND

REMAND BECAUSE THE PANEL BELOW

DID NOT APPLY THE PROPER

STANDARD UNDER FED. R. CIV. P.

12(b)(6) WHEN IT DISMISSED

PETITIONER’S COMPLAINT FOR

FAILURE TO STATE A CLAIM.

The error of the panel’s decision is compounded by

the fact that the case was dismissed at the pleading

stage pursuant to a motion brought under Fed. R. Civ.

P. 12(b)(6).

A Rule 12(b)(6) motion tests the legal sufficiency of

the claims asserted in the complaint. See Fed. R. Civ.

P. 12(b)(6). Rule 12(b)(6) must be read in conjunction

with Rule 8(a), which requires only a “short and plain

statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a). The Rule 8

standard contains a powerful presumption against

rejecting pleadings for failure to state a claim.

13

While the long-standing and often quoted “no set of

facts” proposition set forth in Conley v. Gibson, 355

U.S. 41, 45-46 (1957) was abrogated by this Court's

decision in Bell Atlantic Corp. v. Twombly, 127 S.Ct.

1955, 1969 (2007), this recent decision did not change

the fundamental Rule 12(b)(6) standard that is

applicable in this case. For example, in Erickson v.

Pardus, 127 S.Ct. 2197 (2007), a cased decided after

Bell Atlantic Corp., this Court reversed a dismissal

under Rule 12(b)(6), noting that it was error for the

appellate court to conclude that the allegations in

question were too “conclusory” for pleading purposes.

The Court reemphasized the liberal Rule 8 pleading

standard, stating that “[s]pecific facts are not

necessary; the statement need only ‘give the defendant

fair notice of what the . . . claim is and the grounds

upon which it rests.” Id. at 2200 (quoting Bell Atlantic

Corp., 127 S.Ct. 1964 (quoting Conley v. Gibson, 355

U.S. at 47)). This is the applicable standard that the

panel failed to apply in this case.

It is well established that when reviewing the

motion to dismiss, the panel was required to read the

complaint in the light most favorable to Petitioner and

accept as true all material allegations in the

complaint, as well as reasonable inferences drawn

from them. See Erickson, 127 S.Ct. at 2200 (“[W]hen

ruling on a defendant’s motion to dismiss, a judge

must accept as true all of the factual allegations

contained in the complaint.”). Here, the panel failed to

apply this standard by dismissing Petitioner’s

allegations and crediting Respondents’ self-serving

assertions to the contrary.

14

In its decision, the panel appeared to acknowledge

that a “hostility toward religion” claim is viable under

the Establishment Clause, thus acknowledging that

Petitioner had advanced a cognizable legal theory. In

fact, the panel stated, “If we assume for the moment

that the revised seal did, in fact, convey an anti-

Christian message, then it is understandable that

Vasquez would feel aggrieved by that message. He

should, accordingly, be able to seek a legal remedy. ...

In short, Vasquez has alleged a sufficiently concrete

injury arising out of his direct contact with the

purportedly offensive anti-religious symbol at issue in

this case.” App. 12a-13a. Despite this nod to the

legitimacy of Petitioner’s claim, the panel ultimately

ignored its own findings and dismissed the complaint

at the pleading stage.*

The panel also improperly weighed evidence

contrary to the Rule 12(b)(6) standard. In its decision,

the panel stated, “Vasquez claims that [Respondents’]

purpose in removing the cross from the seal was ‘anti-

Christian’ and ‘motivated by hostility toward

Christianity,” App. 21a, (which, as noted previously

and discussed further below, advances a cause of

action under the Establishment Clause). However, in

contradiction to Petitioner’s claims, the panel

“accepted [Respondents’] explanation and concluded

that ‘liJn the instant case, it is more plausible the

‘Interestingly, the panel did not dismiss Petitioner’s complaint on

standing grounds—apparently concerned that such precedent

would upset future cases seeking to challenge and remove

religious symbols— instead preferring to make the hostility toward

religion claim a “non-claim.”

15

County was seeking to avoid the expense associated

with defending a threatened lawsuit over an alleged

Establishment Clause violation in making its decision

to remove the cross from the seal.”” App. 2la. By

weighing competing inferences drawn from the factual

allegations in the pleadings, accepting Respondents’

contrary evidence, and dismissing the complaint, the

panel disregarded the standard governing motions to

dismiss.

Moreover, the panel compounded its error by

ignoring Petitioner’s claim that Respondents’ alleged

purpose was a “sham” because Respondents were

working with the ACLU to essentially stage such an

occurrence. As alleged in the complaint,

“(Respondents policy, practice, and/or custom to

remove the cross from the LA County Seal was

improperly influenced and continues to be improperly

influenced by the American Civil Liberties Union, an

organization that has a reputation for seeking to

remove Christianity from the public square. While

[Respondents] are cooperating and conferring with

representatives from the American Civil Liberties

Union regarding the removal of the cross,

[Respondents] have refused to place this issue before

° This evidentiary finding also contradicts Petitioner’s allegation

that removing the cross has cost Respondents, and therefore the

taxpayers, “thousands of municipal and/or state funds and tax

dollars.” App. 59a; see generally App. 8a-9a. Indeed, Petitioner

contends that discovery will show that this figure is much higher.

Thus, “avoid|ing) expense” was hardly Respondents’ motive or

purpose for removing the cross.

16

the citizens of LA County for a vote, despite requests

to do so.”” App. 58a; see also App. 6a.

Indeed, the panel’s truncated approach to the

“purpose” inquiry is contrary to this Court’s precedent.

In McCreary County v. ACLU, 545 U.S. 844 (2005),

this Court harshly criticized such an approach, stating,

“The Counties would read the cases as if the purpose

enquiry were so naive that any transparent claim to

secularity would satisfy it, and they would cut context

out of the enquiry, to the point of ignoring history, no

matter what bearing it actually had on the significance

° Respondents’ sham purpose is further evidenced by the fact that

no reasonable person would conclude that the tiny cross that had

been a part of the LA County seal since 1957 violates the

Establishment Clause. See Van Orden, 545 U.S. at 677

(upholding the 40-year display of the Ten Commandments on the

grounds of the Texas State Capitol).

Moreover, Respondents’ reliance on the ACLU in this matter

was unreasonable. For example, in ACLU v. Mercer County, 432

F.3d 624 (6" Cir. 2005) (upholding the public display of the Ten

Commandments), the Sixth Circuit stated, “Our concern is that of

a reasonable person. And the ACLU, an organization whose

mission is ‘to ensure that. . . the government [is kept] out of the

religion business,’ does not embody the reasonable person.” Jd. at

638 (quoting ACLU website).

The Sixth Circuit stated further:

{T]he ACLU makes repeated reference to “the separation

of church and state.” This extra-constitutional construct

has grown tiresome. The First Amendment does not

demand a wall of separation between church and state.

Our Nation’s history is replete with governmental

acknowledgment and in some cases, accommodation of

religion.

Id. at 638-39 (citations omitted).

17

of current circumstances.” /d. at 863-864. As the case

law demonstrates, courts should scrutinize the

government’s actual purpose based on a well-developed

record and not merely accept the self-serving

statements of the government. See, e.g., Edwards, 482

U.S. at 578; McCreary County, 545 U.S. at 862 (“The

eyes that look to purpose belong to an ‘objective

observer,’ one who takes account of the traditional

external signs that show up in the text, legislative

history, and implementation of the statute or

comparable official act.”) (internal quotations and

citation omitted). Thus, the panel’s “purpose” analysis,

in light of the Rule 12(b)(6) standard, was error as a

matter of law.

The panel’s approach to analyzing the “effects” of

Respondents’ action fares no better. As this Court

explained, when evaluating the effect of government

action under the Establishment Clause, the court must

ascertain whether the challenged action is “sufficiently

likely to be perceived” as a disapproval of the

Petitioner’s religion. County of Allegheny, 492 U.S. at

597 (citations omitted) (emphasis added); see also

Lynch, 465 U.S. at 690 (O’Connor J., concurring) (“The

effect prong asks whether, irrespective of the

government's actual purpose, the practice under

review in fact conveys a message of endorsement or

disapproval.”). This inquiry is from the perspective of

an informed reasonable observer. See County of

Allegheny, 492 U.S. at 631 (concurring opinion)

(stating that the “endorsement test” is “highly context

specific”).

Furthermore, “the Establishment Clause forbids a

State to hide behind the application of formally neutral

18

criteria and remain studiously oblivious to the effects

of its actions.” Santa Fe Indep. Sch. Dist., 530 U.S. at

307 n.21 (internal quotations and citations omitted).

In its decision, the panel disregarded Petitioner’s

allegations based on its dubious inference that

“[Respondents’] removal of the cross is more

reasonably viewed as an effort to restore their

neutrality and to ensure their continued compliance

with the Establishment Clause,” seeking to prove the

assertion by claiming that this is “demonstrated by the

fact that [Respondents] removed the cross only after

the presence of crosses on other municipal seals had

been held to be unconstitutional” and citing several

cases as support. App. 25a. What is remarkable about

the panel’s assertion—in addition to being contrary to

the allegations in the complaint—is the fact that the

latest case cited by the panel was decided in

1995—nine years prior to Respondents’ removal of the

cross in this case. To conclude that Respondents’ 2004

decision to remove the cross was made as a result of

cases decided in other circuits in 1995 and prior is, to

put it kindly, a stretch. Cf Ellis v. City of La Mesa,

990 F.2d 1518, 1528 (9 Cir. 1993) ““We do not hold

that any depiction of a cross on an official insignia in

California violates the [California Constitution].”).

In the final analysis, the panel essentially allowed

Respondents to rebut Petitioner’s prima facie case of

hostility toward religion based on contrary factual

assertions and inferences the panel drew from a record

that does not yet fully exist. The panel then further

failed to recognize that rebutting Petitioner's

assertions is not even the end of the

inquiry—Petitioner should be allowed to demonstrate

19

that Respondents’ rebuttal argument is mere pretext

masking an illicit purpose, as alleged in the complaint.

IV. THE COURT’S CURRENT

ESTABLISHMENT CLAUSE

JURISPRUDENCE IS IN DISARRAY AND

LEADS TO INCONSISTENT RESULTS

THAT PROMOTE HOSTILITY TOWARD

RELIGION.

The Court’s modern Establishment Clause

jurisprudence is in “hopeless disarray,” Rosenberger,

515 U.S. at 861 (Thomas, J., concurring in the

judgment), and in need of “[{slubstantial revision,”

County of Allegheny, 492 U.S. at 656 (Kennedy, J.,

concurring in part and dissenting in part); see also Elk

Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 45 n.1

(2004) (Thomas, J., concurring in the judgment) (“Our

jurisprudential confusion has Jed to results that can

only be described as silly.”); Edwards, 482 U.S. at 639

(Scalia, J., dissenting) (criticizing the Court’s

“embarrassing Establishment Clause jurisprudence”);

Wallace v. Jaffree, 472 U.S. 38, 92 (1985 ) (Rehnquist,

J., dissenting) (“It is impossible to build sound

constitutional doctrine upon a mistaken understanding

of constitutional history, but unfortunately the

Establishment Clause has been expressly freighted

with Jefferson’s misleading metaphor for nearly 40

years.”); Lamb’s Chapel v. Center Moriches Union Free

Sch. Dist., 508 U.S. 384, 399 (1993) (Scalia, J.,

concurring in the judgment) (“I agree with the long list

of constitutional scholars who have criticized Lemon

and bemoaned the strange Establishment Clause

geometry of crooked lines and wavering shapes its

intermittent use has produced.”).

20

Inconsistent results—results which tend to promote

hostility toward religion—in the inferior federal courts

can be directly attributed to the insufficient and

inconsistent guidance given to them by this Court.

See, e.g., Bauchman v. West High Sch., 132 F.3d 542,

551 (10" Cir. 1997) (“To the extent the Supreme Court

has attempted to prescribe a general analytic

framework within which to evaluate Establishment

Clause claims, its efforts have proven ineffective.”);

ACLU v. Schundler, 168 F.3d 92, 113 (3™ Cir. 1999)

(dissent) (“Until the Supreme Court decides a case in

which a majority opinion of the Court utilizes a clear

test to analyze a religious display, we are left with

fact-specific inquiries that focus on the size, shape, and

inferential message delivered by displays with

religious elements, leaving almost any display that has

a religious symbol in it open to challenge and any such

display that has secular elements, no matter how

trivial open to judicial approval.”); Doe v. Duncanville

Indep. Sch. Dist., 994 F.2d 160, 166 n.7 (5" Cir. 1993)

(“We have eschewed the tripartite Lemon analysis in

favor of a more case-bound approach because we

believe that a fact-sensitive application of existing

precedents is more manageable and rewarding than an

attempt to reconcile the Supreme Court’s confusing

and confused Establishment Clause jurisprudence.”).

This case presents an opportunity for the Court to

clarify its Establishment Clause jurisprudence in the

context of reviewing for the first time a case involving

hostility toward religion. This Court should grant

review of this case in order to provide needed guidance

for the lower courts and to develop a legal framework

that stems the tide of cases disfavoring religious

symbols, particularly those symbols that have long

21

been a part of the history and traditions of the many

cities and towns across this Nation.

CONCLUSION

While it appears that the panel’s decision conflicts

with several decisions from this Court so that

consideration is necessary to secure and maintain

uniformity of decisions on an important issue of

federal law, the crux of the problem is that this Court’s

Establishment Clause jurisprudence is in disarray and

in need of substantial revision. This Court should

grant review of this case and take the opportunity to

abandon the present Establishment Clause

framework, which tends to be hostile toward religion,

in favor of a workable standard that is not only

capable of consistent application, but that is consistent

with our Nation’s religious history.

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

ROBERT JOSEPH MUISE

Counsel of Record

Thomas More Law Center

24 Frank Lloyd Wright Drive

P.O. Box 393

Ann Arbor, Michigan 48106

Counsel for Petitioner