# Opposition Brief — Kim v. White

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 1135

## Text

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.

|
4
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1704%3A1. Public record. Not legal advice.