Opposition Brief — Kim v. White

No. 01-966

In The

Supreme Court of the United States

¢

FRANK O’BANNON, in his official capacity

as Governor of Indiana,

Petitioner,

V.

INDIANA CIVIL LIBERTIES UNION, et al.,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

¢

KENNETH J. FALK

Counsel of Record

JACQUELYN Bowle Suess

SEAN C. LEMIEUX

INDIANA Civic. Lipertirs UNION

1031 E. Washington St.

Indianapolis, IN 46202

317/635-4059

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-694

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Did the Court of Appeals err in affirming a prelimi-

nary injunction which prevented the Governor of Indiana

from erecting on the lawn of the Indiana Statehouse a

nearly seven foot high and nearly six ton tablet shaped

monument dominated by the text of a version of the Ten

Commandments?

li

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

TABLE GP COIN EO 6 + vednc cde cesstacenvarsecess ii

TABLE OF AUTHIOEIIS 6 ods icciccedisweveccusess iv

STATEMENT OF THE CASE... ..cscccccesvevessecs 1

BERGUONENE vc evi urease cenvecdatsvse chesiesiee en 6

Reasons for Denying the Writ ................66- 6

I. The Seventh Circuit’s decision in this case cor-

rectly recognized and applied this Court’s hold-

ings in determining that the proposed

monument lacks a valid secular purpose and

that, regardless of purpose, it represents an

endorsement of religion............eceeeeeeees 7

A. The Governor seeks plenary review merely to

challenge the Seventh Circuit’s application of

established jurisprudence to the particular

facts and circumstances of this case......... 7

B. Applying this well accepted analysis, the

Court of Appeals correctly found that the

Ten Commandments monument, in its spec-

ific context, would lack a valid secular pur-

pose and would represent an endorsement

GE rOTiGiOUs DOE « «oo vc vvvices cicsnasssvess 10

1. The Seventh Circuit properly found

that the monument would lack a secular

PRNDOOD. 6 sca davacnccenencssessaventens 10

2. The Seventh Circuit properly found that

the nearly seven foot high and nearly six

ton monument in the familiar tablet

shape of the Ten Commandments,

located at the seat of governmental

power in Indiana, would convey a mes-

sage of endorsement of religion ....... 15

ill

TABLE OF CONTENTS - Continued

Page

C. The display of the Ten Commandments is

not analogous to legislative prayer nor does

it represent a common secular heritage ... 19

Il. Contrary to petitioner’s assertion, there is no

significant conflict in the lower courts on the

issue presented in this case.................-. 20

A. The proposed circuit conflict. ............. 20

B. The proposed conflict with a decision of a

state court of last resort .................. 22

Ill. The fact that there are other Ten Command-

ments cases in the lower courts and that some

state and local governments are interested in

displaying the Ten Commandments is not a rea-

son for granting plenary review .............. 23

So; Fab uehse Ce cau econ eseerusesevesvess 24

iv

TABLE OF AUTHORITIES

Page

CASES:

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

appeal pending, No. 00-3139 (6th Cir) ............... 9

Agostini v. Felton, 521 U.S. 203 (1997) ............... 12

American Civil Liberties Union v. McCreary County,

145 FSupp.2d 845 (E.D.Ky. 2001), appeal pending,

Pew.. Ge GU GORD svc cecccncnsacassendiecns 9, Z2

American Civil Liberties Union of Kentucky v. McCre-

ary County, Kentucky, 96 F.Supp.2d 679 (E.D.Ky.

i OTT err eT Tere Teer eee rece 10, 22

American Civil Liberties Union of Kentucky v. Pulaski

County, Kentucky, 96 F.Supp.2d 691 (E.D.Ky.

UNE a6 dove cdkecvceihekeamdsnesstbesaveaipentarsseees 9

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

Cir.), cert. denied, 414 U.S. 879 (1973).... 6, 20, 21, 22

County of Allegheny v. American Civil Liberties

Union Greater Pittsburgh Chapter, 492 U.S. 573

fi, PEP e TTC eE TET TT TET eC TUTTE TEPC T Tree passim

Doe v. Harlan County School District, 96 F.Supp.2d

OOF CERN FE 5 ok hc dvevvccescunesiicencsscesss 10

Edwards v. Aguillard, 482 U.S. 578 (1987) .......... 8, 19

Harvey v. Cobb, 811 F.Supp. €69 (N.D.Ga. 1993),

aff'd without opinion, 15 F.3c' 1097 (11th Cir.),

cert. denied, Sil US. TIZD GIGPE) onc sn cssccssoseces 10

Kimbley v. Lawrence County, Indiana, 119 F.Supp.2d

GG GRA Fe oe Scoe ci Ci ceieviei Mattison 9, 22

Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982)..... 17

Lee ov. Welsman, SUS US. 377 CI9SZ). ccc cccccccccsscs 22

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

TABLE OF AUTHORITIES - Continued

Page

Lynch v. Donnelly, 465 US. 668 (1984) .........--. passim

Marsh v. Chambers, 463 U.S. 783 (1983) ..........---- 19

Mitchell v. Helms, 530 U.S. 793 (2000). ..............-. 8

Santa Fe Independent School District v. Doe, 530 U.S.

Bee Ch sav cd bscansserdgucessGwtecseecassehan 8, 13

School District of Abington Township v. Schempp, 374

COD, Fe CRD 6 din ot tv eve etapewecsueeceecessnstex 22

State of Colorado v. Freedom from Religion Founda-

tion, 898 P.2d 1013 (Colo. 1994), cert. denied, 516

CEs FOGG CE Vncacinccebasdreescsvesntenwiecanee 6

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

Suhre v. Haywood County, North Carolina, 55

F.Supp.2d 384 (W.D.N.C. 1999)......sccccesecccees 10

Summum v. Callaghan, 130 F.3d 906 (10th Cir. 1997) .... 21

CONSTITUTIONS:

TID. COE GONG Boo ccc cekonsncocanssecenes passim

Det. CONT SOCRINIES 2 oo osc cccdscccccesvcseesesens 3

THe BIBLE:

Phpeaneiatay BsBG-E1. «0s ce cccsecicvetenesses peevewe 21

PE FNMES sk cckcesvucsechuseccegecesecensucens 21

OTHER AUTHORITIES:

STEVEN K. GreEN, The Fount of Everything Just and

Right? The Ten Commandments as a Source of

American Law, 14 THE JoURNAL OF LAW AND RELI-

SNE TS CP i ev tarevddencdccyciedecsaesows 11

vi

TABLE OF AUTHORITIES - Continued

Page

Letter from Thomas Jefferson to Dr. Thomas

Cooper (February 10, 1814) in THOMAs JEFFERSON

— Wrrncs (Merrill D. Peterson ed. 1984) ......... 11

Russet. Kirx, THe Roots or AMERICAN ORDER

ee EET ae neg ne Pere OLE a ee a 11

Isaac KrRaMNICK & R. LAURENCE Moors, THE Gop-

Less CONSTITUTION — THE CasE AGAINST Reuicious

ee re ON cc eee cw bees Ouse 11

SUPREME Court Historica Society, SUPREME COURT

ne neéedcedGaveeetess 17

es

STATEMENT OF THE CASE

The Indiana Statehouse, located in Indianapolis, is

the seat of governmental power for the State of Indiana,

containing, among other offices, those of the Governor,

General Assembly, and the Indiana Supreme Court. (Peti-

tioner Appendix [hereinafter “Pet.App.”] 4a). The

grounds of the Statehouse are approximately two acres.

(Pet.App. 29a).

In March of 2000, Governor O’Bannon announced

plans to accept a donated monument containing, among

other things, a version of the Ten Commandments.

(Pet.App. 71a). The intended monument was to be made

of two blocks of Indiana limestone weighing approxi-

mately 11,500 pounds. (Pet.App. 64a). The base block of

the monument would be rectangular and on top of that

would be placed an angled block containing two large

faces and two smaller sides. (Pet.App. 64a, 65a). In total

the monument would be approximately seven feet high at

its highest point and six feet seven inches wide at its-

widest point. (Pet.App. 64a). The monument would be

tablet shaped. (Pet.App. 65a).

One large face of the monument would have

inscribed on it the following version of the Ten Com-

mandments.

TEN COMMANDMENTS

I. THOU SHALT HAVE NO OTHER GODS BEFORE

ME

Il. THOU SHALT NOT MAKE UNTO THEE ANY

GRAVEN IMAGE

Ill. THOU SHALT NOT TAKE THE NAME OF THE

LORD THY GOD IN VAIN

IV. REMEMBER THE SABBATH DAY TO KEEP IT

HOLY

V. HONOR THY FATHER AND THY MOTHER

THAT THY DAYS MAY BE LONG IN THE LAND

WHICH THE LORD THY GOD GIVETH THEE

VI. THOU SHALT NOT KILL

Vil. THOU SHALT NOT COMMIT ADULTERY

Vill. THOU SHALT NOT STEAL

IX. THOU SHALT NOT BEAR FALSE WITNESS

AGAINST THY NEIGHBOR

. 4 THOU SHALT NOT COVET THY NEIGHBORS

HOUSE OR WIFE OR ANYTHING THAT IS THEY

[sic] NEIGHBORS

(Pet.App. 65a-66a). There would be nothing else on this

side of the monument. (Pet.App. 66a). The lettering of the

text of the Decalogue would be approximately one (1)

inch in height. (Id.). It is uncertain as to how large the

lettering would be which spells out “TEN COMMAND-

MENTS.” (Id.). -

The other large tablet face of the monument would

contain the text of the Bill of Rights under a heading

marked “Bill of Rights.” (Id.). Because the text of the Bill

of Rights is longer than that of the Ten Commandments,

the printing of the Bill of Rights would be smaller than

that of the Ten Commandments. (Pet.App. 66a, 67a). The

text of the Bill of Rights would only be approximately

5/8" in height. (Id.).

On one small side of the monument would be an

indication that it would be a gift of the Indiana Limestone

Industry to replace a former monument. (Pet.App. 67a).

The other small side would contain the unattributed text

of the Preamble to the Indiana Constitution. (Id.).?

At the current time, on the almost two acre grounds

of the Statehouse there are statues of Christopher

Columbus, George Washington, a coal miner, Governor

Hendricks and Governor Oliver Morton. (Pet.App. 5a,

64a ). There are also a number of ornamental trees with

placards indicating that they were donated by former

governors. (Pet.App. 29a, 75a). Finally, there are monu-

ments on the grounds honoring the National Road as well

as the State capitol itself. (Id.).

The proposed monument would be placed on the

southwest corner of the Statehouse grounds, near the site

of a different Ten Commandments monument which was

removed in 1991. (Pet.App. 68a). This area contains only a

1 The text would read: “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.” (Pet.App. 67a).

2 The preamble 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 our right to choose our own form of

government, do ordain this Constitution.” (Pet.App. 67a).

tree marked with a placard indicating it was dedicated by

former Governor Schricker, as well as a four foot high by

two foot wide monument honoring the National Road.

(Id.). Although the precise location and orientation of the

proposed monument is not certain, it would be approxi-

mately forty-one feet from Governor Schricker’s tree and

ninety-two feet from the four foot high National Road

monument. (Pet.App. 5a, 75a).

The tablet shape of the monument is unique and

unmistakable in that it is the form widely used in artistic

depictions of the Ten Commandments. (Pet.App. 33a,

57a). Even if someone is physically removed from the

proposed monument so that its text cannot be read, the

unique shape will make the monument identifiable from

some distance away from the monument. (Pet.App. 57a).

In announcing that he was planning to accept the

monument and place it on the Statehouse grounds, Gov-

ernor O’Bannon stated that the prior Ten Commandments

monument, to be replaced by the proposed one, served

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

(Pet.App. 71a). He also noted that the words of the Ten

Commandments and the Bill of Rights and the preamble

to the Indiana Constitution are “ideals we all need to be

reminded of from time to time.” (Id.). He also stated that

“[t]he new monument will be an integral part of the

Statehouse setting, which honors the history of our state

and our nation” and that it “will be a wonderful addition

to the many historic markers on the Statehouse grounds.”

(Pet.App. 72a, 74a).

This action was brought by the Indiana Civil Liber-

ties Union and a number of individuals, including two

ministers and a rabbi. The district court granted a prelim-

inary injunction against the Governor placing the monu-

ment on the Statehouse grounds, finding that given the

Governor’s statements concerning the monument and

given its design, its purpose was a religious one in viola-

tion of the first prong of Lemon v. Kurtzman, 403 U.S. 602

(1971). (Pet.App. 40a-47a). Additionally, the district court

found that a reasonable person would conclude, after

reviewing the monument and its context, that the Ten

Commandments monument was an endorsement of reli-

gion by the government which violated both the second

prong of Lemon as well as County of Allegheny v. American

Civil Liberities Union Greater Pittsburgh Chapter, 492 U.S.

573 (1989) and Lynch v. Donnelly, 465 U.S. 668, 691 (1984)

(O’Connor, J., concurring). (Pet.App. 47a-58a).

A divided panel of the Seventh Circuit affirmed the

granting of the preliminary injunction. The majority

found that the articulated purposes for the Ten Com-

mandments monument were not secular and therefore

the first prong of Lemon was violated since the Governor

had failed to articulate a valid secular justification for

placing the Ten Commandments, a sacred and religious

text for Jews and Christians, on the grounds of the State-

house. (Pet.App. 7a-9a). The majority also found that the

second prong of Lemon, and the endorsement test, would

be violated by the Ten Commandments monument since a

reasonable observer would view the monument as an

endorsement of religion. (Pet.App. 9a-13a). This conclu-

sion would be reached if one looked at the Ten Com-

mandments on the monument by itself or in combination

with the other documents on the monument. (Pet.App.

lla-12a). Additionally, the majority concluded that

“(njothing in the context of the monument itself or the

surrounding grounds mitigates the religious message

conveyed.” (Pet.App. 12a). Judge Coffey dissented from

the majority’s decision. (Pet.App. 13a).

+

ARGUMENT

Reasons for Denying the Writ

Plenary review in this case is inappropriate for three

reasons. First, the Court of Appeals correctly applied

settled Establishment Clause jurisprudence in finding

that respondents had demonstrated a probability of suc-

cess on the merits that the Governor’s placement of a

nearly six ton and seven foot high tablet shaped Ten

Commandments monument on the lawn of the State-

house was a violation of the First Amendment. The Gov-

ernor merely seeks to correct what he deems to be a

misapplication of principles of law upon which all sides

agree. Although the Governor asserts that the Court of

Appeals misapplied both the secular purpose prong of

Lemon v. Kurtzman, supra, as well as the endorsement test

of Lynch v. Donnelly, supra, and County of Allegheny v.

American Civil Liberties Union Greater Pittsburgh Chapter,

supra, the Court of Appeals’ decision is entirely consistent

with those decisions and is consistent with Establishment

Clause jurisprudence.

Second, plenary review should not be granted to

resolve what petitioner characterizes as a conflict with

either the Tenth Circuit’s opinion in Anderson v. Salt Lake

City Corp., 475 F.2d 29 (10th Cir.), cert. denied, 414 U.S. 879

(1973), or the Colorado Supreme Court’s decision in State

7

of Colorado v. Freedom from Religion Foundation, 898 P.2d

1013 (Colo. 1994), cert. denied, 516 U.S. 1111 (1996). The

latter case involved a Ten Commandments display in a

completely different context than the one presented in the

case at bar and the former case has been questioned and

undermined by the very court which issued it. The Court

of Appeals decision does not create a current conflict

with existing law.

Third, the fact that there are other lower court cases

concerning Ten Commandments displays and the fact

that there exists interest in some sectors of public life in

possibly creating such displays is no reason to grant

plenary review when this Court has previously estab-

lished the principles of law which must be used, in each

individual case, to assess the constitutional validity of the

displays.

I. The Seventh Circuit’s decision in this case correctly

recognized and applied this Court’s holdings in

determining that the proposed monument lacks a

valid secular purpose and that, regardless of pur-

pose, it represents an endorsement of religion

A. The Governor seeks plenary review merely to

challenge the Seventh Circuit’s application of

established jurisprudence to the particular facts

and circumstances of this case

The test for determining whether religious displays

on government property violate the Establishment Clause

is set out in Lemon. Under Lemon's tripartite analysis a

challenged governmental practice is constitutional only

if: 1) it has a secular purpose, 2) its principal effect

neither inhibits nor advances religion, and 3) it does not

foster excessive entanglement.* Governmental action

“violates the Establishment Clause if it fails to satisfy any

of these prongs.” Edwards v. Aguillard, 482 U.S. 578, 583

(1987). In County of Allegheny, a majority of the Court

adopted the endorsement analysis presented by Justice

O’Connor in her concurrence in Lynch which modified the

“effects” prong of Lemon to ask “whether, irrespective of

government's actual purpose, the practice under review,

in fact conveys a message of endorsement or disap-

proval.” Lynch, 465 U.S. at 690 (O’Connor, J., concurring);

County of Allegheny, 492 U.S. at 592. See also, Santa Fe

Independent School District v. Doe, 530 U.S. 290, 307 (2000)

(focusing on “[t]he actual or perceived endorsement of

the message.”). In determining whether an endorsement

exists a court must focus on the precise factual context of

the matter being challenged since, for example, “a typical

museum setting, though not neutralizing the religious

content of a religious painting, negates any message of

endorsement of that content.” Lynch, 465 U.S. at 690

(O’Connor, J., concurring). “Every government practice

must be judged in its unique circumstances to determine

whether it constitutes an endorsement... .” Lynch, 465

U.S. at 694 (O’Connor, J., concurring). Of necessity, there-

fore, when a determination is being made as to whether a

specific government practice, reviewed in its context,

3 In Mitchell v. Helms, 530 U.S. 793, 807-08 (2000) (plurality

opinion), the plurality noted that to some extent the “excessive

entanglement” prong of Lemon has been absorbed into the

“primary effect” prong. This further refining of Lemon is not

relevant here since the respondents have never claimed that the

challenged Ten Commandments monument creates an

“excessive entanglement.”

violates the Establishment Clause, “the inquiry calls for

line-drawing; no fixed, per se rule can be framed.” Lynch,

465 U.S. at 678.

The Seventh Circuit properly recognized that this

was the law governing the Establishment Clause and that

this was the law which had to be applied to determine if

the Governor’s planned placement of the Ten Command-

ments monument on the lawn of the Statehouse was

unconstitutional. (Pet.App. 7a). The Governor objects

because, in his estimation, the Court of Appeals applied

this settled law incorrectly. Given that the results of the

application will necessarily be altered by the unique facts

and context of each display, the fact that, in the Gover-

nor’s opinion, the Seventh Circuit applied the law incor-

rectly is not grounds for plenary review.* And, the Court

of Appeals applied the law correctly.

4 A review of recent decisions concerning the display of the

Ten Commandments on government property indicates that,

regardless of their holdings, courts well understand that they

must analyze both the purpose of such displays and whether,

based on the specific context, an endorsement of religion or

religious belief is created. See, e.g., American Civil Liberties Union

v. McCreary County, 145 FSupp.2d 845 (E.D.Ky. 2001), appeal

pending, No. 01-5935 (6th Cir.) [preliminary injunction granted

against displays in courthouses and schools which contained,

among other things, the Ten Commandments]; Kimbley v.

Lawrence County, Indiana, 119 F.Supp.2d 856 (S.D.Ind. 2000)

[preliminary injunction issued against Ten Commandments

monument on the lawn of a county courthouse]; Adland v. Russ,

107 F.Supp.2d 782 (E.D.Ky. 2000), appeal pending, No. 00-3139

(6th Cir.) [permanent injunction issued against placing Ten

Commandments monument on the grounds of the Kentucky

Statehouse]; American Civil Liberties Union of Kentucky v. Pulaski

County, Kentucky, 96 F.Supp.2d 691 (E.D.Ky. 2000) [preliminary

injunction issued against a display of Ten Commandments and

10

B. Applying this well accepted analysis, the Court

of Appeals correctly found that the Ten Com-

mandments monument, in its specific context,

would lack a valid secular purpose and would

represent an endorsement of religious belief

1. The Seventh Circuit properly found that the

monument would lack a secular purpose

In Stone v. Graham, 449 U.S. 39, 41 (1980) (per curiam),

in striking down a Kentucky statute which required the

posting of the Ten Commandments in classrooms, the

Court stated the obvious when it indicated that the Ten

Commandments is an “undeniably sacred text in the Jew-

ish and Christian faiths ....” Given the clear religiosity

of the Ten Commandments, the Seventh Circuit placed

the burden on the Governor to demonstrate a secular

other documents in county courthouse]; Doe v. Harlan County

School District, 96 F.Supp.2d 667 (E.D.Ky. 2000) [preliminary

injunction issued against posting of Ten Commandments and

other documents containing references to God and the Bible ina

public school]; American Civil Liberties Union of Kentucky v.

McCreary County, Kentucky, 96 F.Supp.2d 679 (E.D.Ky. 2000)

[preliminary injunction issued against posting Ten

Commandments and cther documents in county courthouse];

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

(W.D.N.C. 1999) [allowing a courtroom display containing,

among other things, an abridged version of the Ten

Commandments]; Harvey v. Cobb, 811 F.Supp. 669 (N.D.Ga.

1993), aff'd without opinion, 15 F.3d 1097 (11th Cir.), cert. denied,

511 U.S. 1129 (1994) [display of Ten Commandments in a

courthouse was not in an educational display and was

unconstitutional].

11

purpose. (Pet.App. 8a).> The Governor does not argue

that it was erroneous to place this burden on him.

> The Governor appears to argue that the Court of Appeals

erred in finding that the Ten Commandments was “inherently

religious” (Pet.App. 9a), citing Russell Kirk for the proposition

that the Ten Commandments had a major influence on the

development of Western law and civilization. Russet. Kirk, THE

Roots OF AMERICAN OrperR (1974). However, there are numerous

scholars and historians who disagree with this assertion. See,

e.g., Steven K. Green, The Fount of Everything Just and Right? The

Ten Commandments as a Source of American Law, 14 THE JOURNAL OF

Law AND Re.icion 525, 558 (1999-2000) [concluding that “[t]he

historical record fails to support claims of a direct relationship

between the law and the Ten Commandments.”]; Isaac

KRAMNICK AND R. LAURENCE Moore, THE GopLess CONSTITUTION -

THe Case AGAINsT RetiGious Correctness 27-28 (1996) [noting the

controversy at the time of the passage of the Constitution over

the concerted and successful effort to make the Constitution a

secular document]. Indeed, no less an important figure than

Thomas Jefferson undertook to refute the misconception that

the English common law was somehow based on Mosaic law by

noting that the English common law predated the introduction

of Christianity to England and that subsequent thereto

Christianity simply was not adopted as a part of the common

law. Letter from Thomas Jefferson to Dr. Thomas Cooper

(February 10, 1814), in THomas JEFFERSON — Wrimincs, at 1321-1329

(Merrill D. Peterson ed. 1984). Jefferson further stated that “in

answer to Fortescue Aland’s question why the ten

commandments should not now be a part of the common law of

England? we may say that they are not because they never were

made so by the legislative authority, the document which has

imposed that doubt on him being a manifest forgery.” Id. at

1329.

Although the question of the legal influence of the Ten

Commandments may be debated, there is no doubt that the Ten

Commandments is a living and meaningful holy document for

Christians and Jews who gaze upon its words as the revealed

truth from God and not as some sort of historical predecessor to

12

Instead, he argues that the Seventh Circuit misapplied the

relevant test by requiring the Governor to demonstrate

that his purpose was primarily secular and in failing to

honor his statement of secular purpose. The Governor

errs.

Under the first prong of Lemon “we continue to ask

whether the government acted with the purpose of

advancing or inhibiting, religion, and the nature of that

inquiry has remained largely unchanged.” Agostini v. Fel-

ton, 521 U.S. 203, 223-24 (1997). Although the Court of

Appeals stated that “the display of secular texts along

with the Ten Commandments does not automatically lead

to a finding that the purpose in erecting the monument is

primarily secular” (Pet.App. 9a), the Court of Appeals

did not indicate that it was requiring the Governor to

demonstrate that the erecting of the monument was pri-

marily for a secular purpose. Instead, the Court of

Appeals properly stated that the question was whether

the actual purpose of the planned monument was “to

advance or inhibit religion.” (Pet.App. 7a). And, the

Court of Appeals noted that it was the Governor’s obliga-

tion to demonstrate “a valid secular justification for plan-

ning to erect the monument.” (Pet.App. 9a).

our secular law today. There simply can be no dispute that at its

core the Ten Commandments is a “sacred text.” Stone, 449 U.S.

at 42. Therefore, any discussion as to its display by the

government must start with the realization that there must be a

valid secular purpose to overcome this religiosity. As the Court

of Appeals recognized, this is not an impossible burden

(Pet.App. 7a-8a), but it is not a burden which the Governor met

in this case.

13

In assessing the purpose, the Court of Appeals fol-

lowed this Court’s pronouncement that it is not enough

for the State to enunciate a secular justification since,

“[w]hen a governmental entity professes a secular pur-

pose for an arguably religious policy, the government's

characterization is, of course, entitled to some deference.

But it is nonetheless the duty of the court to ‘distinguis[h]

a sham secular purpose from a sincere one.’ Wallace [v.

Jaffree], 472 U.S., at 75 (O’Connor, J., concurring in the

judgment).” Santa Fe Independent School District v. Doe, 530

U.S. at 308. Therefore, it was proper for the Court of

Appeals to examine the Governor’s enunciated purposes

for allowing a nearly six ton and seven foot high monu-

ment dominated by the text of the Ten Commandments to

be placed on the grounds of the Indiana Statehouse. -

Two of the reasons noted by the Governor are overtly

religious: the Ten Commandments serve as a reminder of

the “core values” of the United States and they contain

“ideals” which we all need to be reminded of from time

to time. As this Court noted in Stone, the values promoted

by the Ten Commandments are religious values and the

ideals are religious ones.®

As a third reason, the Governor proclaimed that the

Ten Commandments are part of the legal and cultural

- €“The Commandments do not confine themselves to

arguably secular matters, such as honoring one’s parents,

killing or murder, adultery, stealing, false witness, and

covetousness. .. . Rather, the first part of the Commandments

concern the religious duties of believers: worshiping the Lord

God alone, avoiding idolatry, not using the Lord’s name in vain,

and observing the Sabbath Day.” Stone, 449 U.S. at 42.

14

history of the United States. However, in Stone, this Court

specifically held that merely asserting, even in a writing

that accompanied the posting of the Decalogue, the

secular and historical significance of the Ten Command-

ments was not enough to overcome its religiosity; this

“ ‘avowed’ secular purpose is not sufficient to avoid con-

flict with the First Amendment.” 449 U.S. at 41. As in

Stone, the Court of Appeals rejected the notion that

merely saying the Ten Commandments was posted for a

historical and secular reason is sufficient to dispel the

religiosity of the document when the context does not

confirm this purpose. There must be some demonstration

from the context of the Ten Commandments that it is

_ posted for historical or cultural purposes. Not only

would the planned monument not be linked either in a

visual or explanatory way with the other texts on the

monument, there would be no link whatsoever between

the Ten Commandments and the other material on the

lawn of the Indiana Statehouse. The proposed site for the

monument sits closest to a monument honoring the

National Road and a tree planted by a former governor.

There simply is nothing in the Ten Commandments mon-

ument which suggests a historical purpose other than the

Governor saying so. This is not enough to create a secular

purpose.”

7 The trial court specifically found that:

at oral argument, the State was unable to elucidate

any historical link between most of the

commandments and “ideals animating American

government.” Counsel for the State, when asked

about each individual commandment, was unable to

provide any historical linkage between seven of the

15

2. The Seventh Circuit properly found that the

nearly seven foot high and nearly six ton

monument in the familiar tablet shape of

the Ten Commandments, located at the seat

of governmental power in Indiana, would

convey a message of endorsement of reli-

gion

Under the effects prong of Lemon, as refined by the

endorsement analysis, a court must determine “whether,

irrespective of government’s actual purpose, the practice

under review in fact conveys a message of endorsement

or disapproval.” Lynch, 465 U.S. at 690 (O’Connor, J.,

commandments and only weak historical links to

three of them.

(Pet.App. 44a-45a). The district court further noted that:-

The only Commandments the State was able to link

historically to legal or core values and ideals were

“thou shalt not kill,” “thou shalt not commit

adultery,” and “thou shalt not bear false witness

against thy neighbors.” However, even the links to

these commandments were quite attenuated, as the

State itself acknowledges that killing, in and of itself,

is not illegal (moreover, the State itself authorizes

death as punishment for certain crimes under certain

circumstances), the links to adultery are found in

statutes that are no longer on the books, and bearing

false witness is only incorporated into our legal

system to the extent that sworn witnesses are subject

to perjury if they lie. Counsel also conceded that any

association between the Second Commandment and

old “Blue Laws” which in past times required certain

commercial establishments to be closed for business

on Sundays, and other such historical vestiges of the

old sabbatic laws, is a stretch, and certainly not an

expression of any “core” value or ideal.

(Pet.App. 45a).

16

concurring). In County of Allegheny, 492 U.S. at 597, this

Court noted that “the effect of the government’s use of

religious symbolism depends on its context.” In review-

ing the context, the Court of Appeals in this case- noted

the obvious; the planned monument would not be in

“some museum nestled in some secluded park” .. . [it

would be at] the seat of Indiana government... . ”

(Pet.App. 10a).® Given this prominent location, “a reason-

able observer would think that this monument, regardless

of the message it conveys, occupies this location with the

support of state government.” (Pet.App. 10a-1la). The

Court of Appeals correctly found that the reasonable

observer would conclude that the monument conveys a

religious message.

Looking solely at the monument itself, a reasonable

observer would see a permanent, large and massive mon-

ument carved in the shape of the Ten Commandments

and dominated by the text of the Decalogue. The shape of

the monument is distinctive enough that it would be

identifiable to any one who perceives its nearly seven

foot high tablet shape from anywhere on the grounds of

the Statehouse. “No viewer could reasonably think that it

occupies this location without the support and approval

of government.” County of Allegheny, 492 U.S. at 599-600.

The placement of a religious symbol at, or on, the seat of

8 The planned monument is therefore unlike the creche

displayed in Lynch which was placed in a park. It is also unlike

the Christmas tree and Menorah in County of Allegheny since the

Court found that those symbols themselves have both secular

and religious dimensions. 492 U.S. at 613-614. The Ten

Commandments, like a creche, is unambiguously religious,

although its religiosity can be mitigated by its context.

17

governmental power “[p]rovides a significant symbolic

benefit to religion in the minds of some by reason of the

power conferred.” Larkin v. Grendel’s Den, Inc., 459 U.S.

116, 125-26 (1982).

A reasonable observer, viewing the monument itself,

would not see anything to mitigate the religious message

conveyed by the Ten Commandments. Even if the reasonable

observer stops to look at the monument, as opposed to just

recognizing it as a Ten Commandments monument from its

shape, the reasonable observer would note that the most

prominent document on the monument is the Ten Com-

mandments. There is nothing which would serve to link the

Bill of Rights, perhaps America’s most important living and

vibrant legal document, with a living and vibrant religious.

document which is sacred and holy to Jews and Christians

other than the inevitable conclusion that these are two docu-

ments which the State of Indiana has deemed to be

extremely important. This is endorsement.?

9 Of course, if a display of historical lawgivers was created,

placing the Ten Commandments next to other laws and

lawgivers throughout history might well mitigate the religious

nature of the Ten Commandments. See, e.g., County of Allegheny,

492 U.S. at 652-53 (Stevens, J., concurring and dissenting). But,

the Governor’s repeated comparison of the Ten Commandments

monument to the frieze in this Court is not accurate. The frieze

on the walls of this Court which depicts Moses holding the Ten

Commandments does not contain just Moses with figures from

America’s legal history. Instead it depicts lawgivers from

throughout history including: Menes, Hammurabi, Solomon,

Lycurgus, Solon, Draco, Confucius, Augustus, Napoleon, John

Marshall, William Blackstone, Hugo Grotius, Saint Louis, King

John, Charlemagne, Mohammed and Justinian. Supreme Court

Historicat Society, SupREME Court oF THE Unrrep States 31. The

placement of the Ten Commandments in the frieze is not an

18

Allegheny is clear; in determining context one must

look to the distinct display. 492 U.S. at 598, n. 48. The

distinct display here is the nearly six ton monument.

However, the endorsement is not lessened even if the

monument is viewed in the context of all the other items

on the Statehouse lawn. There simply is nothing that

would compel or allow a reasonable person to see some

common historical link between the Ten Commandments

and, for example, a statue of George Washington, a statue

of Governor Hendricks, and a plaque commemorating the

National Road. Merely placing a religious display with

statues of important historical figures and commemora-

tive plaques does not remove the endorsement present

when the government places a religious display on public

property. If the religiosity of the document is to be miti-

gated by context it must be placed into a context that has

some unifying historical, legal, or other non-religious

theme. The display that a reasonable observer would see

when looking at the Statehouse has no unifying historical

theme, or any other theme. The reasonable observer will

see the Ten Commandments as a religious display, differ-

ent from the statues and plaques.

acknowledgment of any role that the Ten Commandments has

had in the development of American law; it merely recognizes

“great lawgivers.” County of Allegheny, 492 U.S. at 653. (Stevens,

J., concurring and dissenting).

But, when the Ten Commandments are placed next to the

Bill of Rights, given that there is no natural connection between

the two, the only reasonable conclusion which can be drawn is

that the State of Indiana intends that its citizens honor and

revere both. County of Allegheny does not stand for the

proposition that any religious display can be “secularized” if it

is displayed near something else.

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id

19

C. The display of the Ten Commandments is not

analogous to legislative prayer nor does it rep-

resent a common secular heritage

Eschewing Lemon or the endorsement analysis, the

Governor argues that inasmuch as legislative prayer is

allowed, Marsh v. Chambers, 463 U.S. 783 (1983), and

inasmuch as ceremonial reference to God has been found

in some circumstances to be constitutionally acceptable as

expressing a cultural and secular message, rather than a

religious one, the posting of the Ten Commandments

must be deemed to be appropriate. in Marsh, this Court

noted that there had been a long acceptance of legislative

prayer and that legislative prayer had been in existence at

the time that the Constitution was adopted. 463 U.S. at

792. Marsh, however, has been restricted to its particular

facts, and is not useful here since, among other things,

there is absolutely no evidence that the posting of Ten

Commandments monuments was accepted at the time of

the Constitution. Edwards v. Aguillard, 482 U.S. at 583, n.

4.

The posting of this sacred text is not a memorial to

some common secular “heritage.” Nor is it “cultural.”

Posting a document holy to Christians and Jews is

directly contrary to what this Court has noted is our real

heritage.

This Nation is heir to a history and tradition

of religious diversity that dates from the settle-

ment of the North American Continent .. .

Precisely because of the religious diversity

that is our national heritage, the Founders

added to the Constitution a Bill of Rights, the

very first words of which declare: “Congress

ne

20

shall make no law respecting an establishment

of religion, or prohibiting the free exercise

thereof ....” Perhaps in the early days of the

Republic these words were understood to pro-

tect only the diversity within Christianity, but

today they are recognized as guaranteeing reli-

gious liberty and equality to “the infidel, the

atheist, or the adherent of a non-Christian faith

such as Islam or Judaism.” Wallace v. Jaffree, 472

5 ee See

County of Allegheny, 492 U.S. at 590. The Court of Appeals

correctly affirmed the trial court’s grant of an injunction.

H. Contrary to petitioner’s assertion, there is no signif-

icant conflict in the lower courts on the issue pre-

sented in this case

A. The proposed circuit conflict

In an attempt to manufacture a circuit conflict, the

petitioner cites to only one circuit court case, Anderson v.

Salt Lake City Corp., supra, which it claims is arguably in

conflict with the Seventh Circuit’s decision. In Anderson, a

decision from 1973, the Tenth Circuit found that a three

by five foot granite Ten Commandments monument

erected on the city-county courthouse grounds was not a

violation of the Establishment Clause. In so holding, the

court concluded that the purpose and the primary effect

of the monument were not religious. 475 F.2d at 34. The

court held that the Ten Commandments has both secular

and religious attributes. 475 F.2d at 33. The court also

noted that there was nothing coercive about the display.

Id.

EEE

21

Anderson preceded Stone. In Stone this Court speci-

fically noted that, posted by itself, the Ten Command-

ments is a religious text without secular purpose.

The Ten Commandments are undeniably a

sacred text in the Jewish and Christian faiths,

and no legislative recitation of a supposed secu-

lar purpose can blind us to that fact. The Com-

mandments do not confine themselves to

arguably secular matters, such as honoring

one’s parents, killing or murder, adultery, steal-

ing, false witness, and covetousness. See Exodus

20:12-17; Deuteronomy 5:16-21. Rather, the first

part of the Commandments concerns the reli-

gious duties of believers: worshiping the Lord

God alone, avoiding idolatry, not using the

Lord’s name in vain, and observing the Sabbath

Day. See Exodus 20:1-11; Deuteronomy 5:6-15.

449 U.S. at 42.

In Summum v. Callaghan, 130 F.3d 906, 912, n. 8 (10th

Cir. 1997), the Tenth Circuit was asked to overrule Ander-

son, but found it unnecessary to do so since it found that

the district court’s decision could be reversed on other

grounds. However, the court quoted the above passage

from Stone and noted that “[w]Je are not at liberty to

overrule or disregard the precedent of an earlier panel

absent en banc reconsideration or a superseding contrary

decision of the United States Supreme Court . . . . We

note, however, that our decision in Anderson has been

called into question by the Supreme Court in Stone v.

Graham.” Id. (Internal citations omitted).19 Given that the

10 Other courts have agreed that, after Stone, the continuing

validity of Anderson has been called into doubt. See, American

22

1980 decision in Stone undercuts the validity of the 1973

decision in Anderson and the court that issued Anderson

doubts its continued validity, there is not a significant

conflict between Anderson and the Court of Appeals’ deci-

sion in this case which justifies the grant of plenary

review.!}

B. The proposed conflict with a decision of a state

court of last resort

Petitioner argues that the Seventh Circuit’s decision

conflicts with one decision of a state court of last resort,

State of Colorado v. Freedom from Religion Foundation, supra.

In Freedom from Religion Foundation, the Colorado

Supreme Court, by a 4-3 margin, upheld as constitutional

a relatively small (2-4 feet by 21/2 feet) Ten Command-

ments monument. 898 P.2d at 1016. The monument was

placed into a park that is part of a three block complex of

public property, which includes the park and the grounds

of the state capital. 898 P.2d at 1015. Throughout the park

were large historical statues and memorials. 898 P.2d at

Civil Liberties Union v. McCreary County, Kentucky, 145 F.Supp.2d

at 847, n. 6; Kimbley v. Lawrence County, 119 F.Supp.2d at 871, n.

10; American Civil Liberties Union of Kentucky v. Pulaski County,

Kentucky, 96 F.Supp.2d at 700.

11 The Anderson decision is also questionable to the extent

that it focuses on whether the display was coercive. Although

coercive efforts by the Government may lead to an Es-

tablishment Clause violation, see, e.g., Lee v. Weisman, 505 U.S.

577 (1992), there is no requirement that an Establishment Clause

violation be predicated on coercion. County of Allegheny, 492

USS. at 597, n. 47; School District of Abington Township v. Schempp,

374 U.S. 203, 223 (1963).

iii aaa a a

23

1015-1016. The court examined the context of the monu-

ment and noted that it was placed inconspicuously into a

park, “where citizens may be found by choice and are not

necessarily present for purposes related to government.”

898 P.2d at 1025. The Governor’s Ten Commandments

monument would neither be inconspicuous, nor in a spot

unrelated to government. Obviously, the opposite is true.

The monument would be on the grounds of the State-

house, near a walkway leading directly into the State-

house itself. (Pet.App. 75a). Its size and shape would

guarantee that it would be conspicuous. Thus, like the

Court of Appeals’ decision below, the Colorado decision

recognizes that context is a critical element in the Estab-

lishment Clause analysis. For that reason, it is entirely

plausible that the Colorado Supreme Court would have

reached a different conclusion if the monument there, like

the monument here, had been conspicuously displayed

on the property of a governmental building where citi-

zens were forced to come into direct and unwelcome

contact with it in the course of their civic activities. The

Colorado decision, presenting an entirely different factual

circumstance and context than this one, does not justify

this Court granting plenary review in this case.

Ill. The fact that there are other Ten Commandments

cases in the lower courts and that some state and

local governments are interested in displaying the

Ten Commandments is not a reason for granting

plenary review

As the Governor demonstrates in his petition, the

issue of the public display of the Ten Commandments is

one which a number of lower courts and state and local

24

governments are facing. (See Petition at 11-13). However,

this Court’s Establishment Clause jurisprudence has set

out the analysis which must be used to assess the consti-

tutional validity of such displays and has emphasized

that this inquiry must be context based and tailored to the

precise circumstances of the display. Lynch, 465 U.S. at

678. No per se rule can be expressed indicating that the

Ten Commandments can never, or can always, be dis-

played. Instead each case must be examined separately.

And that is what the lower courts and the government

entities are undoubtedly doing. Given that there is no

significant conflict in the lower courts, the fact that lower

courts have Ten Commandments cases pending or that

this is an issue which state and local governments are

considering is simply not a reason to grant plenary

review. There is no further explication of the law which

would change the context based inquiry that must be

made in each case.

CONCLUSION

Certiorari is not warranted. The Court of Appeals’

analysis conformed to the context based inquiry

demanded by this Court. There is no meaningful conflict

with prior decisions of a circuit court or state supreme

court. The fact that there are other Ten Commandments

_cases in the lower courts, and interest in posting the Ten

Commandments in various state or local governments,

does not create a basis for the granting of plenary review

inasmuch as this Court has established the test to be used

25

to judge the validity of the display of the Ten Command-

ments in those cases. Since there are no grounds for

granting the petition, it should be denied.

Respectfully submitted,

KENNETH J. FALK

Counsel of Record

JACQUELYN Bowle SuEss

SEAN C. LEMIEUX

INDIANA Crvi_ LrsertiEs UNION

1031 E. Washington St.

Indianapolis, IN 46202

317 /635-4059

Counsel for Respondents