Amicus Curiae Brief — Capitol SquareReview and Advisory Bd. v. Pinette

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Rugrema Cost, Ul

FILED

(2) FEB 23 199§

No. 94-780 : ef WA OMI

In The

Supreme Court Of The United States

October Term, 1994

CAPITOL SQUARE REVIEW AND ADVISORY BOARD,

RONALD T. KELLER, DANIEL SHELLENBARGER,

AND OHIO SENATOR RICHARD T. FINAN,

Petitioners,

VINCENT J. PINETTE, DONNIE A. CARR, AND

KNIGHTS OF THE KU KLUX KLAN,

Respondents.

On Writ of Certiorari To The United States

Court of Appeals For The Sixth Circuit

BRIEF AMICUS CURIAE OF AMERICANS UNITED

FOR SEPARATION OF CHURCH AND STATE, THE

AMERICAN JEWISH COMMITTEE, PEOPLE FOR

THE AMERICAN WAY, THE UNION OF AMERICAN

HEBREW CONGREGATIONS, AND AMERICAN

CIVIL LIBERTIES FOUNDATION OF VERMONT, INC.,

IN SUPPORT OF PETITIONERS

Of Counsel: Steven K. Green

(Counsel of Record)

Norman Dorsen Julie A. Segal

Samuel Rabinove AMERICANS UNITED FOR SEPARATION

Elliot M. Mincberg OF CHURCH AND STATE

David Saperstein 1816 Jefferson Place, NW

John D. Shullenberger Washington, DC 20036

Richard T. Cassidy 202/466-3234

| BEST AVAILABLE COPY © Slope

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......ccccccccees ill

INTERESTS OF AMICI CURIAE ............. 1

SUMMARY OF ARGUMENT ..............2ee000- 1

py | er eT Terr rT Tre rr TTT TTT Terre 3

I. THE "NO ENDORSEMENT OF RELIGION"

TEST IS THE APPROPRIATE STANDARD FOR

REVIEWING THE CONSTITUTIONALITY OF

RELIGIOUS DISPLAYS IN PUBLIC FORA .. 3

A. The "No Endorsement of Religion" Test Is

Appropriate for Considering Issues of Religious

Speech in Public Areas .......cccccccccccces 3

B. The Prohibition on Government Endorsements

of Religion Represents a Core Principle of the

Establishment Clause ............ccccceeees 6

Il. CONTRARY TO THE DECISION OF THE

SIXTH CIRCUIT, ENDORSEMENT OF

RELIGION CAN OCCUR IN A

PUREE, PUPRUIE seccccccccsegsccccccecen 14

Page

A. The Adoption of a Blanket Rule Upholding

Private Religious Speech in a Public Forum

Conflicts with this Court's Public Forum Holdings

as well as Its Decisions Concerning Endorsement

OF PRGUBIOD occ ccccicsccnsécseseses sebsesis 14

B. The Display of Respondents’ Cross on Capitol

Square, When Viewed in its Overall Context,

Results in the Appearance of Endorsement of

SS PPTTETTTIT TTT rere eee eee 23

CUNCEAMIIIN oc cccccscccdcsccnesscegcendasi jsne

AMG ..06cdiesseesneee App. 1

iil

Federal Cases Page

Abington Township School Dist. v. Schempp,

Es ae ae 13

ACLU v. City of Birmingham,

Tae wie bees Come Ge. 1900) .. . wc eee “J

ACLU v. City of St. Charles,

794 F.2d 265 (7th Cir. 1986) .............-4.--. 24

ACLU v. Miss. State GSA,

652 F. Supp. 380 (S.D. Miss. 1987) ...........-- 24

American Jewish Congress v. City of Chicago,

ee GB ER) 20, 25

Americans United for Separation of Church

and State v. Grand Rapids,980 F.2d 1538

ee eee eee 14, 15

Berger v. Renssealear Cent. School Corp.,

982 F.2d 1160 (7th Cir.), cert denied,

a, ar 18

Page

Board of Educ. of Kiryas Joel v. Grumet,

ioe eee fC: ee er 4, 18, 26, 28

Board of Educ. v. Mergens,

ee As REG kp ea he 2 ee als Oe 4, 13,17

Bowen v. Kendrick,

er a oe ko ae bo rd we eee es 22

Chabad-Lubavitch v. City of Burlington,

936 F.2d 109 (2d Cir.), cert. denied,

BEd Oe es UD 6 he os as hee ee eee 25

Chabad-Lubavitch of Georgia v. Miller,

> Fae bree Cr es NE kw no es eee sos 15, 25

Church of the Holy Trinity v. United States,

ee ae ee I a so ake Be aoe oe ee ee 11

Congregation Lubavitch v. City of Cincinnati,

997 F.24 1160 (Gth Cir. 1993) -.. 2... eee ee 15

Congregation Lubavitch v. City of Cincinnati,

ee we Tg Le a | ree 25

Cornelius v. NAACP Legal Def. and Educ. Fund,

Rie ee, | | Perr a s a 16, 17

County of Allegheny v. ACLU,

ee re a ok wees Fo 0 he eV ee passim

Page

Creatore v. Town of Trumbull,

No. 3:94CV2143 (D. Conn. Dec. 20, 1994), aff'd,

COG <t. TR. Bae FE ce ee eee es Peer ert 25

Doe v. City of Clawson,

eee ef te | re 20

Doe v. Small,

964 F.28 Gil (7 Ci. WE) 2. ww ce ce eee passim

Doe v. Village of Crestwood,

917 F.2d 1476 (7th Cir.), cert. denied,

bee Bo ef). re re er ee 18

Edwards v. Aguillard,

ee RO ee ee ae 13, 18

Ellis v. City of La Mesa,

990 F.2d 1518 (9th Cir.), cert. denied,

$96 B.S ee CP ow ee oes aie ees 20, 21, 24

Engel v. Vitale,

yp fk ee re ee 6, 7, 13

Epperson v. Arkansas,

Se es Ek ow ee oe Se ek ew ewe es 12

Flamer v. City of White Plains,

S41 F. Sapp. 1965 .D.N.Y. 1995) . 2 we eee 25

Flast v. Cohen,

Se She 6 oe ok oe bee Oe ee 23

Page

Fowler v. Rhode Island,

Dae es et ee a a 5 eee 21

Gonzales v. North Township,

47.50 1412 (7 Cor. 1993) . ww ee 19, 20, 21

Heffron v. ISKCON,

Se Si. GP CRED ws 6.8 a é de eee 21

ISKCON v. Lee,

Sia @. Gk. 2Pee Geeee ok eho esos Nee 16, 18

Jewish War Veterans v. United States,

Gao F. Sapp. FU. G.. FR os ce ee eo eee 24

Kaplan v. City of Burlington,

8°1 F.2d 1024 (2d Cir.), cert. denied,

Fae a. TU CE és 0 6k 6 be passim

Kreisner v. City of San Diego,

1 F.3d 775 (9th Cir.), cert. denied,

SOG GB. Ges We Co ik S eens 65d eo sakes 15

Lamb's Chapel v. Center Moriches School Dist.,

EES D. GA. SEOs CEE ak aes wee ars 4, 13, 16, 17, 19

Lee v. Weisman,

eee Be ee fr 12, 22, 23, 28

Lemon v. Kurtzman,

Gee Ue. Gee Ge oc oo ba ie eg eee eee 28

Vil

Page

Lynch v. Donnelly,

ee a I oo bk eee ee ee passim

McCollum v. Board of Education,

ee RE 6 bo ko ae ae eh ee ee es 6, 7, 28

Members of City Council v. Taxpayers for Vincent,

ae, ee Es os dw ees ce eee ee ee 26

O'Hair v. Andrus,

thw | ooo Fes A. 7, Pn a irae 19

PEARL v. Nyquist,

a See PI eo 6d Gs OSS 28

Peloza v. Capistrano Unif. School Dist.,

SF ee ee ee ED 6 5 4 6S Se eR ees 18

Perry Educ. Assn. v. Perry Local Educators’ Assn. .,

ee ek ei ies 4s 3 He we eR 16

School Dist. of Grand Rapids v. Ball,

Sie Cs aE eo CRAG CRC Ys S, 13, 37

Smith v. Albemarle County,

895 F.2d 953 (4th Cir.), cert. denied,

498 U.S. 823 (1990) ............. 15, 19, 20, 21, 25

Stone v. Graham,

ee i We a eee ae eee awe 12

Vill

Page

Stromberg v. California,

ee ls ho os he es eee HOR EE 21

Texas Monthly v. Bullock,

eso -o ise ck ek Os eS ha, 33

Tinker v. Des Moines School Dist.

a ree 21

United States v. Kokinda,

ee a SN oo oo kk os Oe 18

Valley Forge Christian College v. Americans United

for Separation of Church and State,

Oe Ge I Soke oe eee eS RS eee 23

Vidal v. Girard's Executors,

en os 0 hs 4 0 4 he ke Oe we 10

Wallace v. Jaffree,

oe eh PD 6 5 as) a oe ee a ay 1s 32

Washegesic v. Bloomingdale Pub. Schools, |

Pe Pe te A 18

Widmar v. Vincent,

eS | 12, 16, 17, 19, 21

Walz v. Tax Commission,

Bt Se TE 60 eh eee ees es Oe: 28

Page

West Virginia Board of Educ. v. Barnette,

SED Us SO CU ve ce eee es

State Cases

Board of Educ. v. Minor,

pep 8 Be a: |

Commonwealth v. Wolf,

3 Serg. & Rawle 48 (Pa. 1817) ......

Knowlton v. Baumhover

166 N.W. 202 (lowa 1918) ........

Lindenmuller v. The People,

_ 33 Barb. 548 (N.Y. 1861) .........

Okrand v. City of Los Angeles,

254 Cal. Rptr. 913 (Cal. Ct. App. 1989)

Pearce v. Atwood,

bl ee

People ex rel. Ring v. Board of Educ.,

es a. 2 re

People v. Ruggles,

8 Johns. 290 (N.Y. 1811) .........

Page

State ex rel. Freeman v. Scheve,

We Wee s BO GO. BOOS 6 ke ee eae Cee ds 12

State ex rel. Weiss v. Dist. Board of School Dist. No. 8,

oe ee | rr 12

Updegraph v. Commonwealth,

11 Serg. & Rawle 394 (Pa. 1824) .............. 10

Other Authorities

26 Cong. Rec. 1374 (Jan. 25, 1894) ............ 10

Robert S. Alley, ed., James Madison on

Religious Liberty (1985)................ 8, 27, 28

Donald L. Beschle, The Conservative as Liberal: The

Religion Clauses, Liberal Neutrality, and the Approach of

Justice O'Connor, 62 Notre Dame L. Rev. 151 (1987). 13

Joseph Richard Hurt, The Use of Endorsement in

Establishment Clause Analysis - The Key to a New

_ Consensus, 8 Miss. C. L. Rev. 1 (1987). ......... 13

Page

Phillip E. Johnson, Concepts and Compromise

in First Amendment Religious Doctrine,

72 Cal. L. Rev. 817 (1984) .......... re ee .28

Douglas Laycock, Noncoercive Support for Religion:

Another False Claim about the Establishment Clause,

26 Val. Gale. Ge. FERRO: 6 oe on es hee 7,9, 13

Max Lerner, Constitution and Court as Symbols, 46 Yale

ee fe ne eee ee ae ee ee ee 4

Arnold H. Loewy, Rethinking Government Neutrality

Towards Religion Under the Establishment Clause: The

Untapped Potential of Justice O'Connor's Insight,

a ee ee ee 13

William P. Marshall, The Concept of Offensiveness in

Establishment and Free Exercise Jurisprudence,

ee ee ee ee ee ee 5, 13

William P. Marshall, "We Know It When We See It”:

The Supreme Court and Establishment,

pe eo ee ee ee 6, 13

David McAllister, Christian Civil Government (1927) . 10

Steven D. Smith, Symbols, Perceptions, and Doctrinal

Illusions: Establishment Neutrality and the "No

Endorsement” Test, 86 Mich. L. Rev. 266 (1987) .... 13

Anson Phelps Stokes and Leo Pfeffer, Church and State

in the United States (rev. ed. 1964) .............. 9

Xli

Page

Joseph Story, Commentaries on the Constitution of the

United States (4th ed. 1873). ................. 11

John F. Wilson and Donald L. Drakeman, eds.,

Church and State in American History (1987). .... 7,8

Mark G. Yudof, When Government Speaks (1983) ... 22

INTERESTS OF AMICI CURIAE

The interest of each amicus curiae is set forth in the

appendix hereto. The letters from the parties consenting to the

filing of this brief are on file with the Clerk of the Court.

SUMMARY OF ARGUMENT

The Court should apply the "no endorsement of

religion" test in this case and not some other standard of

review. The endorsement test, with its prohibition on

government imprimatur of religion, represents the most

appropriate analytical standard for reviewing the

constitutionality of private speech in public areas. The no-

endorsement principle is thoroughly consistent with our

constitutional heritage and has been a recurring theme in

church-state jurisprudence.

The court of appeals’ hoiding below represents a rigid,

per se rule that government endorsement of religion can never

occur in a public forum so long as private speech is involved.

This holding is inconsistent with the Court’s public forum

analysis which allows the state to show a narrowly tailored

compelling interest in order to restrict protected speech. The

holding also conflicts with the endorsement test, which

requires courts to examine the entire context of the display to

see whether endorsement has occurred.

Considering the entire context of the display of the

Klan cross at Capitol Square, the Court should hold that the

state would create the appearance of endorsing the religious

message of the cross by allowing its display. The cross stands

unattended and unaccompanied by any neutralizing symbols at

a highly significant location closely associated with state

government. A reasonable observer would perceive that the

cross occupies this special location with the support and

approval of the government. Finally, the long-term display of

the cross at this location invites religious divisiveness, a

persistent concern of the Establishment Clause.

Each of the amici on this brief vigorously supports free

exercise of religion for people of all faiths and has so

advocated in numerous cases before this Court. Each knows

too, however, that there is no religious need to place sacred

symbols of any faith in public areas. There is abundant

private property available for the public display of sacred

symbols of all faiths - churches, synagogues, mosques,

religious schools, store fronts, private homes and lawns.

When any group demands as a matter of right to place

its sacred symbol in a public area, it does so because it seeks

to send a message and to make a symbolic statement, i.e.,

unless display of this-sacred symbol is permitted in a public

area, it is not official enough. That is precisely our

constitutional point. Sacred symbols of any faith do not need,

and should not receive, official endorsement, express or

implied.

As such, the question here is whether in certain

situations, the Establishment Clause can serve as a bar to

private speech in a public forum. The issue of whether the

state may distinguish between types of religious symbols the

menorah and the cross - is not in doubt. Government may not

prefer one religion over another; nor may it define one

religion’s symbol as cultural or seasonal in order to provide it

with special access. Amici contend that the display of the

menorah and the cross under the circumstances of this case are

equally unconstitutional.

ae aS #

ARGUMENT

i. THE "NO ENDORSEMENT OF RELIGION"

TEST IS THE APPROPRIATE STANDARD FOR

REVIEWING THE CONSTITUTIONALITY OF

RELIGIOUS DISPLAYS IN PUBLIC FORA.

A. The "No Endorsement of Religion" Test Is

Appropriate for Considering Issues of Religious

Speech in Public Areas.

The Court should apply the "no endorsement of

religion" test for reviewing the constitutionality of private

religious speech in public areas. The test, with its prohibition

on governmental imprimatur of religion, reflects "the essential

command of the Establishment Clause, namely, that

government must not make a person's religious beliefs

relevant to his or her standing in the political community by

conveying a message ‘that religion or a particular religious

belief is favored or preferred.'" County of Allegheny v. ACLU,

492 U.S. 573, 627 (1989) (O'Connor, J., concurring in part

and in the judgment) (quoting Wallace v. Jaffree, 472 U.S.

38, 70 (1985) (O'Connor, J., concurring in the judgment)).

No other analytical standard so closely captures that crucial

aspect of nonestablishment that prohibits government from

aligning its practices and policies with religion, from

affirmatively favoring, disfavoring, or promoting one religion

or religion in general, or from unintentionally "convey[ing] a

message that religion or a particular religious belief is favored

or preferred." Wallace, 472 U.S. at 70 (O'Connor, J.,

concurring).

The endorsement test is the most appropriate standard

for reviewing issues of religious symbolic speech in public

areas. The endorsement test had its first articulation and its

clearest application in the Court's two religious display cases.

Allegheny, 492 U.S. at 592-94; Lynch v. Donnelly, 465 U.S.

668, 690-91 (1984) (O'Connor, J., concurring). As Justice

O'Connor observed recently, while different categories of

Establishment Clause cases may call for separate analytical

approaches, those cases concerning government involvement

with religious speech "require an analysis focusing on whether

the speech endorses or disapproves of religion, rather than on

whether the government action is neutral with regard to

religion." Board of Educ. of Kiryas Joel v. Grumet, 114 S. Ct.

2481, 2499-500 (1994) (O'Connor, J., concurring in part and

in the judgment). This authority instructs its use here.

Allegheny, 492 U.S. at 592-94 ("In recent years, we have paid

particularly close attention to whether the challenged

governmental practice either has the purpose or effect of

endorsing religion...."); accord Lamb’s Chapel v. Center

Moriches School Dist., 113 S. Ct. 2141, 2148 (1993); Board

of Educ. v. Mergens, 496 U.S. 226, 247-48 (1990).

More than precedent calls for the application of the

endorsement test in this case. Because messages

communicated through symbols can be powerful, but at the

same time imprecise, the potential for official endorsement

arises whenever free-standing religious symbols are erected on

public areas closely associated with government.’ Unlike

other analytical standards, the endorsement test seeks to

address "the myriad subtle ways in which Establishment

Clause values can be eroded” that are often difficult to

' According to one commentator, people "are notably

more sensitive to images than to ideas, more responsive to

stereotypes than to logic, to the concrete symbol than to the

abstraction.” Max Lerner, Constitution and Court as Symbols, 46

Yale L.J. 1290, 1293 (1937).

articulate but are nevertheless real to religious nonadherents.

Allegheny, 492 U.S. at 591. Endorsement also acknowledges

the prominent role symbolism plays in both religion and

government and the "‘highly charged atmosphere’ that

develops when the two are intertwined." William P. Marshall,

The Concept of Offensiveness in Establishment and Free

Exercise Jurisprudence, 66 Ind. L.J. 351, 355 n.23 (1991).’

No other test addresses those Establishment Clause violations

that take place in the transitional zone between government

and private speech and action. Allegheny, 492 U.S. at 600-01

("Indeed, the very concept of ‘endorsement’ conveys the sense

of promoting someone else's message.").> Finally, the

endorsement test's focus on the particular context of the

challenged speech is especially appropriate for religious

display cases because the "meaning ascribed to symbols is

often a function of the context in which the particular symbol

2 "Symbolism is a primitive but effective way of

communicating ideas. The use of an emblem or flag to symbolize

some system, idea, institution, or personality, is a short cut from

mind to mind. Causes and nations, political parties, lodges and

ecclesiastical groups seek to knit the loyalty of their followings to

a flag or banner, a color or design. The State announces rank,

function, and authority through crowns and maces, uniforms and

black robes; the church speaks through the Cross, the Crucifix,

the altar and shrine, and clerical raiment. Symbols of State often

convey political ideas just as religious symbols come to convey

theological ones." West Virginia Board of Educ. v. Barnette,

319 U.S. 624, 632 (1943).

3 "Government promotes religion as effectively when it

fosters a close identification of its powers and responsibilities with

those of any — or all — religious denominations as when it

attempts to inculcate specific religious doctrine." School Dist. of

Grand Rapids v. Ball, 473 U.S. 373, 389 (1985).

arises.” William P. Marshall, "We Know It When We See It”:

The Supreme Court and Establishment, 59 S. Cal. L. Rev.

495, 538 (1986).

Conversely, a standard of formal neutrality or one

limited to official attempts at proselytizing ignores the subtle

power of symbolism and will not prevent the government from

lending its "power [and] prestige” to a religious group or from

affiliating itself with a religious dogma. Engel v. Vitale, 370

U.S. 421, 429 (1962); Allegheny, 492 U.S. at 604-09. A

lesser standard that would allow government use of religion,

short of actual proof of intent to coerce belief or advance

religion, would open the door to myriad subtle if not overt

acts of religious preference. Such a result would be

inconsistent with the core purpose of the Establishment

Clause. As Justice O'Connor remarked in Allegheny, "the

endorsement test asks the right question about government

practices challenged on Establishment Clause grounds

including challenged practices involving the display of

religious symbols." /d. at 628 (O'Connor, J., concurring).

The test should be applied in this case.

B. The Prohibition on Government Endorsements

of Religion Represents a Core Principle of the

Establishment Clause.

Endorsement of religion is "a concern that has long had

a place in our Establishment Clause jurisprudence."

Allegheny, 492 U.S. at 592. As early as McCollum v. Board

of Education, 333 U.S. 203, 209 (1948), and again later in

Engel v. Vitale, 370 U.S. at 431, 436, this Court identified

state endorsements of religion as an evil the Establishment

Clause was designed to prevent.’

But this well-founded concern, based on the historic

propensity of government toward religious endorsements,

predates the Court's modern church-state decisions.

According to a leading commentator, state endorsement of

religion was equated with "an establishment in the political

understanding of the Founder's generation . . .." Douglas

Laycock, Noncoercive Support for Religion: Another False

Claim about the Establishment Clause, 26 Val. U.L. Rev. 37,

42 (1991). Thomas Jefferson and James Madison condemned

_all forms of endorsement as being inconsistent with principles

of nonestablishment. Both leaders believed government lacked

the authority (both legal and moral) to make any statements on

behalf of religion, advisory or otherwise.” Madison wrote that

4 See McCollum, 333 U.S. at 209 (condemning "the close

cooperation between the school authorities and the religious

council in promoting religious education."); Engel, 370 U.S. at

429 (condemning state actions that emplace an “official stamp of

approval" on religion or lend government "power and prestige" to

a particular religious belief.).

5 See Jefferson's letter of January 23, 1808, to Rev.

Samuel Millar where Jefferson wrote that to issue even unofficial

religious proclamations would "indirectly assume to the United

States an authority over religious exercises, which the

Constitution has directly precluded them from.” John F. Wilson

and Donald L. Drakeman, eds., Church and State in American

History 79 (1987).

Similarly, in 1832 Madison responded to a pamphlet

written by Rev. Jasper Adams, nephew and cousin of presidents,

that asserted that government had an obligation to promote

government declarations on religion "seem to imply the

erronious (sic) idea of a national religion." Madison opposed

even advisory declarations that evoked no more than a

"universal" sense of "devotion to the God of all," stating that

the "tendency of the practice, [is] to marrow the

recommendation to the standard of the predominant sect."

Madison recognized that "[iJn a nation composed by various

sects, some alienated widely from others,” religious

endorsements would undermine the equality that the

Constitution sought to ensure.°®

During the final two decades of the eighteenth century,

most states dismantled their religious establishments, doing

away with the tax support and ministerial privileges afforded

official churches. Initially, a few states sought to retain the

legal recognition of Christianity under their new constitutions

but quickly dropped such arrangements because they

conflicted with the developing understanding of

nonestablishment.’ As Professor Laycock states, "the

Christianity because the people "had retained the Christian

religion as the foundation of their civil, legal and political

institutions.” Madison unequivocally rejected Adams' thesis, _

arguing for "an entire abstinence of the Government from

interference [with religion] in any way whatever, beyond the

necessity of preserving public order, & protecting each sect

against trespass on its legal rights by others." Letter to Rev.

Jasper Adams, n.d., id. at 80-81.

® James Madison, "Detached Memoranda” (1832), in

Robert S. Alley, ed., James Madison on Religious Liberty 93

(1985).

preponderance of evidence is that opponents of establishment

were unwilling to accept even a bare endorsement of the

established churches." Noncoercive Support for Religion, 26

Val. U.L. Rev. at 42.

Admittedly, the understanding that nonestablishment

prohibits government endorsements of religion was not always

followed. The history of American political discourse and

government action is rife with examples of official

endorsements of religion, in most instances endorsements of

the prevailing religious hegemony. Throughout the nineteenth

century public officials and political leaders tied America's

identity and purpose to Protestant Christianity while some

sought even to have the country declared a "Christian Nation."

See Morton Borden, Jews, Turks, and Infidels 54-74, 98-129

(1984).® Justice Joseph Story, writing for the Court in 1844,

7 In 1784, Virginia passed an act incorporating the

Protestant Episcopal Church that granted the church no more than

official recognition. Even though the law afforded the church no

legal authority or financial benefit, it was repealed three years

later after massive protest. A similar example of an early

endorsement is found in the South Carolina Constitution of 1778,

which declared that "The Christian Protestant religion shall be

deemed, and is hereby constituted and declared to be, the

established religion of this State." That provision was removed

from the 1790 constitution. Anson Phelps Stokes and Leo

Pfeffer, Church and State in the United States 67, 81 (rev. ed.

1964); Laycock, Noncoercive Support for Religion, 26 Val. U.L.

Rev. at 42-45. According to Professor Laycock, "the principle

surviving element of these establishments was endorsement of a

preferred religion, and those endorsements were unacceptable to

opponents of establishment." Jd. at 42.

8 In 1858, lowa Governor Lowe issued a proclamation

declaring a day of thanksgiving, stating: "Praise [God] for giving

acceded to the popular view that Christianity was "part of the

common law," arguing that "its divine origin and truth are

admitted, and therefore it is not to be maliciously and openly

reviled and blasphemed against . . .." Vidal v. Girard's

Executors, 2 How. 127, 198 (1844). Some antebellum judges

declared that the duty of government went beyond simply

protecting Christianity from all challenges to encouraging

citizens in their religious obligations.” The perspective that

this whole land so largely of his Spirit, by which the faces of

multitudes have been turned heavenward. Praise him for the

Christian's faith, and the spread of our holy religion.” David

McAllister, Christian Civil Government 107 (1927).

In 1894, Senator Frye of Maine proposed that the

Preamble to the Constitution be amended to include an express

recognition of God, to wit:

We the people of the United States, devoutly

acknowledging the supreme authority and just

government of Almighty God in all affairs of men and

nations; greatful to Him for our civil and religious

liberty, and encouraged by the assurances of His Word to

invoke His guidance as a Christian nation, according to

His appointed way, through Jesus Christ, in order to form

a more perfect union... ..

26 Cong. Rec. 1374 (Jan. 25, 1894).

® In upholding a conviction for violating a Sunday law,

the Pennsylvania Supreme Court stated that "[iJt is of the utmost

moment, therefore, that [people] should be reminded of their

religious duties at stated periods." Commonwealth v. Wolf, 3

Serg. & Rawle 48, 51 (Pa. 1817); accord Lindenmuller v. The

People, 33 Barb. 548, 560-61 (N.Y. 1861); Updegraph v.

Commonwealth, 11 Serg. & Rawle 394, 402-03 (Pa. 1824);

government should be aligned with Christianity reached its

apex with the Court's Holy Trinity decision where Justice

David Brewer declared "this is a Christian nation." Church of

the Holy Trinity v. United States, 143 U.S. 457, 471 (1892).

Notwithstanding such religious pronouncements, by the

late nineteenth century an increasing number of judges and

public officials came to recognize that any official favoritism

toward religion exceeded government authority and violated

notions of religious equality. Judge Alfonzo Taft of the Ohio

Superior Court wrote in 1870:

No sect can, because it includes a majority of a

community or a majority of the citizens of the State,

claim any preference whatever. . . . The State protects

every religious denomination in the quiet enjoyment of

its own mode of public worship. . . . It is, therefore,

an entire mistake, in my opinion, to assert, that the

Protestant Christian religion has been so identified

with the history and government of our State or

country .!°

Pearce v. Atwood, 13 Mass. 324, 348 (1816); People v. Ruggles,

8 Johns. 290, 295-96 (N.Y. 1811). Story argued in his

Commentaries on the Constitution of the United States that it was

"the especial duty of government to foster and encourage

[Christianity] among all the citizens and subjects." 3

Commentaries 603 (4th ed. 1873).

of Cincinnati 414-15 (1870). See also People ex rel. Ring v.

Board of Educ., 92 N.E. 251, 255 (Ill. 1910) ("The law cannot

see religious differences, because the Constitution has definitely

and completely excluded religion from the law's contemplation in

This Court too has since repudiated earlier statements of

religious favoritism as being inconsistent with the

Establishment Clause. Lee v. Weisman, 112 S. Ct. 2649, 2683

(1992) (Scalia, J., dissenting) (criticizing Holy Trinity);

Wallace, 472 U.S. at 52-53 (criticizing Justice Story's

Commentaries); Lynch, 465 U.S. at 718 (Brennan, J.,

dissenting) (criticizing Holy Trinity). As the Court stated in

Allegheny, 492 U.S. at 605:

Whatever else the Establishment Clause may mean

(and we have held it to mean no official preference

even for religion over nonreligion, see, e.g., Texas

Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)), it

certainly means at the very least that government may

not demonstrate a preference for one particular sect or

creed (including a preference for Christianity over

other religions). .. . There have been breaches of this

command throughout this Nation's history, but they

cannot diminish in any way the force of the command.

Accordingly, the no-endorsement pprinciple is

thoroughly consistent with our constitutional heritage and has

been a recurring theme in church-state jurisprudence. Widmar

v. Vincent, 454 U.S. 263, 274 (1981); Stone v. Graham, 449

U.S. 39, 42 (1980); Epperson v. Arkansas, 393 U.S. 97, 106-

considering men's rights."); Board of Educ. v. Minor, 23 Ohio

St. 211, 248 (1873) ("[Christianity's] essential interests lie

beyond the reach and range of human governments.. . . [NJo

government is at all adapted for producing, perfecting, or

propagating a good religion."); accord Knowlton v. Baumhover,

166 N.W. 202, 212 (lowa 1918); State ex rel. Freeman v.

Scheve, 93 N.W. 169, 170 (Neb. 1903); State ex rel. Weiss v.

Dist. Board of School Dist. No. 8, 46 N.W. 967, 978 (Wis.

1890).

pile raha eds

107 (1968); Abington Township School Dist. v. Schempp, 374

U.S. 203, 222 (1963); Engel, 370 U.S. at 429, 436. The test

has appropriately been applied as a separate standard for

constitutional adjudication for the past ten years. Lamb's

Chapel, 113 S. Ct. at 2148; Mergens, 496 U.S. at 248-52;

Allegheny, 492 U.S. at 593-94; Texas Monthly, 489 U.S. at 8-

9, 15; Edwards v. Aguillard, 482 U.S. 578, 585 (1987);

School Dist. v. Ball, 473 U.S. at 389-90; Wallace v. Jaffree,

472 U.S. at 56. As articulated by the Court, the endorsement

test protects the core purpose of the Establishment Clause by

ensuring that government remain truly neutral on religious

matters, neither approving nor disapproving of religion.

Allegheny, 492 U.S. at 627 (O'Connor, J., concurring).'" The

endorsement test has survived careful scrutiny” and continues

to represent the most appropriate standard for determining

11 As discussed in part IIA, infra, this form of neutrality

is neither formal nor passive but requires government to take

affirmative steps to ensure that its actions have not unintentionally

created the perception of endorsement of religion. Lynch, 465

U.S. at 692 (O'Connor, J., concurring).

12 See Laycock, Noncoercive Support for Religion, supra;

Marshall, The Concept of Offensiveness, supra; Joseph Richard

Hurt, The Use of Endorsement in Establishment Clause Analysis

— The Key to a New Consensus, 8 Miss. C. L. Rev. 1 (1987);

Donald L. Beschle, The Conservative as Liberal: The Religion

Clauses, Liberal Neutrality, and the Approach of Justice

O'Connor, 62 Notre Dame L. Rev. 151 (1987); Arnold H.

Loewy, Rethinking Government Neutrality Towards Religion

Under the Establishment Clause: The Untapped Potential of

Justice O'Connor's Insight, 64 N.C.L. Rev. 1649 (1986);

Marshall, "We Know It When We See It," supra; contra Steven

D. Smith, Symbols, Perceptions, and Doctrinal Illusions:

Establishment Neutrality and the "No Endorsement” Test, 86

Mich. L. Rev. 266 (1987).

when government actions have crossed the line from

permissible accommodations of religion into impermissible

favoritism or promotion.

Il. CONTRARY TO THE DECISION OF THE SIXTH

CIRCUIT, ENDORSEMENT OF RELIGION CAN

OCCUR IN A PUBLIC FORUM.

A. The Adoption of a Blanket Rule Upholding

Private Religious Speech in a Public Forum

Conflicts with this Court's Public Forum Holdings

as well as Its Decisions Concerning Endorsement of

Religion.

The court of appeals below held that "the

Establishment Clause forbids only religious speech sponsored

by the government, so ‘truly private religious expression in a

truly public forum cannot be seen as endorsement by a

reasonable observer.'" Pet. App. A9 (quoting Americans

United for Separation of Church and State v. Grand Rapids,

980 F.2d 1538, 1553 (6th Cir. 1992) (emphasis in original)).

Thi holding represents a rigid, per se rule that government

endorsement of religion can never occur when private speech

takes place in a public forum. Under this holding, a finding

of endorsement in a public forum is impossible even though

compelling evidence may exist that a local government intends

to promote a private religious message or, because of past,

direct government involvement with the religious speech, a

reasonable observer would perceive government approval of

the religious message. So long as the actual speech is by a

private individual and takes place in a public forum, then the

existence of any government endorsement of that speech

becomes irrelevant. In essence, the public forum “trumps” the

Establishment Clause, regardless of other factors indicating

religious endorsement.'’ This holding conflicts with the

'3 That the Sixth Circuit's holding amounts to a rigid, per

se rule is made clear in its Americans United decision. Although

the court denied that its holding means the public forum will

always “trump” the Establishment Clause, the court also indicated

that the sole consideration in such cases was whether the public

forum label may have been misapplied. "[I]f such additional facts

are not forthcoming, and evidence indicates that an area actually

is a traditional public forum, then private groups may express a

religious message without a reasonable observer inferring public

support of the message." 980 F.2d at 1553; see also

Congregation Lubavitch v. City of Cincinnati, 997 F.2d 1160,

1164 (6th Cir. 1993) ("It is settled law in this circuit that a city

does not violate the Establishment Clause by permitting a private

organization, during the observance of Chanukah, to erect a large

unattended menorah in a public square that is a traditional public

forum."). These statements are unequivocal.

Two other circuits have made similar broad holdings

indicating the application of a blanket rule. In Chabad-Lubavitch

of Georgia v. Miller, 5 F.34 1383, 1393 (11th Cir. 1993), the

Eleventh Circuit wrote: “Precisely because the religious speech

is communicated in a true public forum, however, the state, by

definition, neither endorses nor disapproves of the speech.” In

Doe v. Small, 964 F.2d 61., 619 (7th Cir. 1992), the Seventh

Circuit stated: “Moreover, the mere presence of religious

symbols in a public forum does not violate the Establishment

Clause, since the government is not presumed to endorse every

speaker that it fails to censcr in a quintessential public forum far

removed from the seat of g»vernment." Contra Kreisner v. City

of San Diego, | F.3d 775, 782-86 (9th Cir.), cert. denied, 114 S.

Ct. 690 (1994); Smith v. Abemarle County, 895 F.2d 953 (4th

Cir.), cert. denied, 498 U.S. 823 (1990); Kaplan v. City of

Burlington, 891 F.2d 1024 (2d Cir.), cert. denied, 496 U.S. 926

(1990).

Court's endorsement decisions and is equally inconsistent with

its public forum analysis. The Court should expressly reject

this blanket rule for the reasons stated below.

1. Considering the Free Speech issue first, a finding

that protected speech takes place in a public forum does not

preclude consideration of potential state interests that may

require government to restrict that speech. Under public

forum analysis, once the speech has been identified as

occurring in a public forum, the burden shifts to the

government to come forward with a narrowly tailored

compelling interest to justify its action. ISKCON v. Lee, 112

S. Ct. 2701, 2705 (1992); Cornelius v. NAACP Legal Def.

and Educ. Fund, 473 U.S. 788, 800 (1985); Perry Educ.

Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45

(1983). Therefore, the mere fact that protected speech has

occurred in a public forum does not mean that a compelling

interest cannot exist.

This Court has expressly held that the interest of the

state in avoiding Establishment Clause violations may

constitute a compelling interest, thereby "justifying an

abridgment of free speech otherwise protected by the First

Amendment." Lamb's Chapel, 113 S. Ct. at 2148 (relying on

Widmar v. Vincent, 454 U.S. at 271). If this statement has

meaning, it is that the avoidance of an endorsement of religion

(which may occur through the unattended display of religious

symbols at government buildings, see Allegheny, 492 U.S. at

598-602) can serve as a compelling interest justifying a

restriction on religious speech. If government endorsement

cannot constitute a compelling interest under free speech

analysis, then the remainder of the Lamb's Chapel and

Widmar opinions - where the Court examined the facts and

found no compelling establishment concern in either case - are

superfluous. Whether sufficient endorsement exists to

constitute a compelling interest will depend on the facts of

each case. Allegheny, 492 U.S. at 598. But the clear rule

from the public forum cases is that "forum analysis is not

completed merely by identifying the government property at

issue." Cornelius, 473 U.S. at 803. But this is exactly what

the Sixth Circuit has done by holding that once private

religious speech takes place on a public forum, no appearance

of endorsement can be seen to have occurred. Pet. App. A9.

2. The Sixth Circuit's ruling runs afoul of this Court's

endorsement holdings as well. As addressed above,

impermissible endorsement of religion does not occur solely

through the government's own speech but may also occur

through "the government's support and promotion of religious

communication by religious organizations." Allegheny, 492

U.S. at 600-01 ("Indeed, the very concept of ‘endorsement’

conveys the sense of promoting someone else's message.");

accord School Dist. v. Ball, 473 U.S. at 389. In both Lamb's

Chapel and Widmar, the Court, after identifying the presence

of private speech in what were arguably public fora, still

examined the degree of government sponsorship to see

whether endorsement had occurred. Lamb's Chapel, 113 S.

Ct. at 2148; Widmar, 454 U.S. at 271-75. Thus, the mere

fact that private speech is involved begs the question of

whether the state has endorsed that speech.* In addition,

because the identity of a public forum is not always self-

'* The Court's statement in Mergens, 496 U.S. at 250,

that “there is a crucial difference between government speech

endorsing religion, which the Establishment Clause forbids, and

private speech endorsing religion, which the Free Speech and

Free Exercise Clauses protect," does not contradict this point but

reaffirms the potential for government endorsement of private

religious speech under circumstances such as those in this case.

evident and frequently turns on interpretations of law as well

as facts,’° it devolves into formalism to hold that the mere

presence of a public forum will automatically negate every

possible perception of endorsement. Instead, this Court

should follow the lead of the Second Circuit Court of Appeals

which has held that "[t}he existence of a public forum is

simply a factor to be taken into account in determining

whether the context of the display suggests government

endorsement." Kaplan v. City of Burlington, 891 F.2d 1024,

1029 (2d Cir. 1989), cert. denied, 496 U.S. 926 (1990).

Moreover, endorsement may occur even though the

government maintains an access policy that is neutral with

regard to religion. See Allegheny, 492 U.S. at 600 n.50

("Even if the Grand Staircase occasionally was used for

displays other than the creche . . . it remains true that any

display located there fairly may be understood to express

views that receive the support and endorsement of the

government."); Kiryas Joel, 114 S. Ct. at 2500 (O'Connor, J.,

concurring);'° cf. Doe v. Village of Crestwood, 917 F.2d 1476

'S The Court's recent public forum cases, often containing

multiple opinions, indicate the recurring difficulty in determining

whether a public forum exists. See e.g. ISKCON, 112 S. Ct.

2701; 112 S. Ct. 2709 (1992); United States v. Kokinda, 497

U.S. 720 (1990).

'© Under Establishment Clause precedent, public school

officials are prohibited from providing religious groups access to

public school students or permitting instruction in religious

alternatives to secular materials. See Edwards v. Aguillard, 482

U.S. at 593; Peloza v. Capistrano Unif. School Dist., 37 F.3d

517 (9th Cir. 1994); Washegesic v. Bloomingdale Pub. Schools,

33 F.3d 679 (6th Cir. 1994); Berger v. Renssealear Cert. School

Corp., 982 F.2d 1160 (7th Cir.), cert denied, 113 S. Ct 2344

(7th Cir.), cert. denied, 112 S. Ct. 3025 (1992) (city may co-

sponsor secular festival but not one holding a Catholic mass).

Again, nothing in Lamb's Chapel or Widmar suggests the

opposite. The appearance that flows from providing live

access to individuals for a few hours is quite distinct from that

arising through the display of unattended, semi-permanent

religious symbols on government property. Allegheny, 492

U.S. at 612.'7 For example, while the Establishment Clause

would permit a religious figure, like the Pope, to conduct a

worship service on the national Mall, O’Hair v. Andrus, 613

F.2d 913 (D.C. Cir. 1979), it would not permit that same

figure to leave a 36 foot Latin cross in front of the national

Capitol for several weeks. There is little doubt that a policy

permitting groups to erect long-standing religious and secular

symbols on government property would run afoul of the

Establishment Clause. Allegheny, 492 U.S. at 661 (Kennedy,

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

cf. Gonzales v. North Township, 4 F.3d 1412 (7th Cir. 1993).

And, as the decisions indicate, the appearance of endorsement

can occur even though the government does not act with the

intent or purpose of doing so."

(1993).

17 “Tt obviously is not unconstitutional, for example, for a

group of parishioners from a local church to go caroling through

a city park on any Sunday in Advent or for a Christian club at a

public university to sing carols during their Christmas meeting.”

Id.; accord Smith, 895 F.2d at 959; Kaplan, 891 F.2d at 1030.

18 See Lynch, 465 U.S. at 690 (O'Connor, J., concurring)

("The effect prong asks whether, irrespective of government's

actual purpose, the practice under review in fact conveys a

message of endorsement or disapproval.”).

3. More particularly, the decision below conflicts with

the command of Allegheny and Lynch that courts must

examine the entire context of a display to determine whether

impermissible endorsement has occurred. The first rule from

Allegheny is that such cases are fact sensitive; that the

constitutionality of a religious display depends upon its

"context" and its particular physical setting.!? The factors the

Court considered in Allegheny and that have been applied

subsequently by federal courts include the character of the

symbol(s) involved (religious or cultural),”° the location and

size of the display,”' the display's physical setting (whether

accompanied by secular items),” the duration of the display ,”°

and whether the display is accompanied by live individuals to

whom the speech may be attributed or whether it stands

'? Discussion of the importance of examining the context

of a display appears in at least nine separate places in the majority

opinion in Allegheny. 492 U.S. at 595, 597, 598, 600, 606, 616-

17, 618, 620. Accord Lynch, 465 U.S. at 678-79.

20 Allegheny, 492 U.S. at 598, 613-17; Gonzales, 4 F.3d

at 1418; Ellis v. City of La Mesa, 990 F.2d 1518, 1525 (9th

Cir.), cert. denied, 114 S. Ct. 2707 (1994); Smith, 895 F.2d at

955; Kaplan, 891 F.2d at 1028-29.

21 Allegheny, 492 U.S. at 599-600; Small, 964 F.2d at —

629; Smith, 895 F.2d at 955, 958; Kaplan, 891 F.2d at 1029;

American Jewish Congress v. City of Chicago, 827 F.2d 120, 126

(7th Cir. 1987).

22 Allegheny, 492 U.S. at 599, 616-18; Doe v. City of

Clawson, 915 F.2d 244, 245 (6th Cir. 1990); Smith, 895 F.2d at

955.

3 Allegheny, 492 U.S. at 607-08, 629 (O'Connor, J.,

concurring); Small, 964 F.2d at 613 n.3; Smith, 895 F.2d at 955.

unattended. While the presence or absence of any one of

these factors is not necessarily determinative of endorsement

nor affects the separate status of the free speech interest, they

represent important considerations for determining whether

impermissible endorsement has occurred. At best, the

existence of a public forum, when considered for endorsement

purposes, is germane for determining how a particular site

affects the endorsement formula. But the mere fact that

speech occurs on public forum cannot address whether other

factors lead to perceptions of endorsement. See Widmar, 454

U.S. at 273-74.% The Sixth Circuit's rigid, per se rule, by

focusing on only one aspect of a display while ignoring all

other factors suggesting endorsement, conflicts with the

Court's endorsement rulings. See Lynch, 465 U.S. at 678

("[TJhe inquiry calls for line-drawing; no fixed, per se rule

can be framed.").

4. Finally, the Sixth Circuit's holding too readily

equates religious speech with all other forms of speech in a

manner that devalues the role of the Establishment Clause.

Amici agree that religious speech is entitled to free speech

protection, see Heffron v. ISKCON, 452 U.S. 640 (1981);

Fowler v. Rhode Island, 345 U.S. 67 (1953), and that

symbolic speech generally is afforded the same protection as

verbal speech. See e.g. Tinker v. Des Moines School Dist.,

393 U.S. 503 (1969); Stromberg v. California, 283 U.S. 359

24 Allegheny, 492 U.S. at 599, 612; Kaplan, 891 F.2d at

1030.

25 As example, two circuits have recently found

endorsement where private groups erected permanent religious

symbols on public property, even though the properties involved

were considered public fora. Gonzales, 4 F.3d 1412; Ellis, 990

F.2d 1518.

(1931). But these principles have their clearest application

when the free speech interest stands alone and does not raise

Establishment Clause concerns. In certain contexts religious

speech and activity are considered unique types of speech and

activity and are treated differently by the government. See

Bowen v. Kendrick, 487 U.S. 589, 621 (1988) (government

may fund secular but not religious counseling services); Lee

v. Weisman, 112 S. Ct. at 2655 (government may not direct

or sponsor religious exercises). This distinction between

religious and nonreligious speech takes on constitutional

significance when government takes steps to support, foster or

encourage religious speech. Allegheny, 492 U.S. at 600-01.

At its core, then, the endorsement test is designed to address

this unique quality of religious speech.*°

Professor Mark Yudof has observed that the

Establishment Clause represents "the only substantive

constitutional! restraint on what governments may say." Yudof,

When Government Speaks 214-15 (1983). Although

government may speak politically or artistically - and sponsor

or fund such activities - it may not do the same with religious

speech. In order to maintain this role, the Establishment

Clause sometimes inhibits government activity that may

contain private speech components. See Allegheny, 492 U.S.

at 599-601 (noting private group's sponsorship of creche).

But this inhibiting role is necessary to effectuate the purposes

private speech become interrelated and indistinct in many

endorsement situations. As Judge Flaum wrote recently in a

related case, “[i]n these cases, the line between public and private

speech becomes murky, and the speech at issue is not altogether

‘private.’” Doe v. Small, 964 F.2d at 628 (Flaum, J., concurring

in the judgement. ).

of the Establishment Clause. As Justice Kennedy has

observed, "[t]he First Amendment protects speech and religion

by quite different mechanisms. Speech is protected by

insuring its full expression even when the government

participates . . . . [BJut the Establishment Clause is a specific

prohibition on forms of state intervention in religious affairs

with no precise counterpart in the speech provisions." Lee,

112 S. Ct. at 2657-58.”’ -The Sixth Circuit decision, however,

equates religious speech with nonreligious speech regardless

of the context and devalues this important role of the

Establishment Clause. As such, it fails to acknowledge the

unique quality of religious speech.

For the above reasons, the adoption of a blanket rule

regarding private religious speech in a public forum is

inconsistent with this Court's public forum holdings as well as

those decisions concerning endorsement of religion. The

adoption of a such a rule for public forum situations imposes

formalism on constitutional adjudication and automatically

negates compelling Establishment Clause concerns. It should

be rejected as an analytical approach in public fora cases.

B. The Display of Respondents' Cross on Capitol

Square, When Viewed in its Overall Context,

Results in the Appearance of Endorsement of

Religion.

27 Accord Flast v. Cohen, 392 U.S. 83, 104 (1968) ("The

Establishment Clause was designed as a specific bulwark against

_. . potential abuses of government power" and "operates as a

specific constitutional limitation" on other constitutional

provisions.); Valley Forge Christian College v. Americans United

for Separation of Church and State, 454 U.S. 464, 479 (1982).

Several factors should lead this Court to find that the

display of Respondents’ Latin cross in front of the Ohio State

Capitol results in the endorsement of the religious message

represented by the cross. As a threshold matter, no one can

dispute the highly religious character of the Latin cross.7 The

cross possesses none of the supposedly cultural attributes of

other religious symbols nor is it commonly identified with a

particular seasonal event that has taken on _ secular

characteristics. Allegheny, 492 U.S. at 613-18. Its message is

blatantly religious.

The overall composition and context of the cross

display lead inevitably to a finding of endorsement. The State

Capitol and its grounds occupy a prominent location in

Columbus and are bordered by major thoroughfares.

Respondents' Appendix at RA2, RA31-32. The cross is

placed directly in front of and stands in close proximity to the

Capitol, which serves as both the symbolic and literal seat of

state government. Passers-by thus observe the solitary,

unattended cross superimposed on this highly recognizable

government building.

28 As the Ninth Circuit stated recently, "the Latin cross

‘is the preeminent symbol of many Christian religions and

represents with relative clarity and simplicity the Christian

message of the crucifixion and resurrection of Jesus Christ, a

doctrine at the heart of Christianity.'" Ellis, 990 F.2d at 1525

(quoting Okrand v. City of Los Angeles, 254 Cal. Rptr. 913, 922

(Cal. Ct. App. 1989)). See alse Gonzales, 4 F.3d at 1418; ACLU

v. City of St. Charles, 794 F.2d 265, 271-72 (7th Cir. 1986);

Jewish War Veterans v. United States, 695 F. Supp. 3, 14-15

(D.D.C. 1988); ACLU v. Miss. State GSA, 652 F. Supp. 380,

384 (S.D. Miss. 1987).

This Court and numerous federal courts have identified

the situs of important government buildings as being crucial to

findings of endorsement. Allegheny, 492 U.S. at 599

(identifying the placement of the creche on the "'main' and

‘most beautiful part' of the building that is the seat of county

government"); see also Chabad-Lubavitch v. City of

Burlington, 936 F.2d 109, 112 (2d Cir.), cert. denied, 112 S.

Ct. 3026 (1992); Smith v. Albemarle County, 895 F.2d 953,

958 (4th Cir.), cert. denied, 498 U.S. 823 (1990); Kaplan,

891 F.2d at 1029; American Jewish Congress v. City of

Chicago, 827 F.2d 120, 126 (7th Cir. 1987); ACLU v. City of

Birmingham, 791 F.2d 1561, 1566 (6th Cir. 1986); Creatore

v. Town of Trumbull, No. 3:94CV2143 (D. Conn. Dec. 20,

1994), aff'd mem., (2d Cir. Dec. 22, 1994); contra Chabad-

Lubavitch v. Miller, 5 F.3d 1383 (11th Cir. 1993).” A typical

observer would assume the state controls the grounds

surrounding the Capitol and would reasonably think that the

cross occupies that location with the support and approval of

the government. It cannot be disputed that the placement of

the cross at this location carries even greater probability of

endorsement than its erection on some other public park.

Kaplan, 891 F.2d at 1029 ("the park involved is not any city

park, but rather City Hall Park."). Finally, the facts in the

instant case suggest that the Respondents expressly sought out

29 See also Doe v. Small, 964 F.2d at 619 (upholding

religious display on public forum "far removed from the seat of

government"); Flamer v. City of White Plains, 841 F. Supp.

1365, 1368 (S.D.N.Y. 1993) (same). Even the Sixth Circuit is

undecided whether to attach any significance to the placement of

religious symbols at or near core government buildings. See

Congregation Lubavitch v. City of Cincinnati, 923 F.2d 458, 459-

60 (6th Cir. 1991) (distinguishing Americans United by noting

that Cincinnati Fountain Square "has no particular connection

with any government buildings or functions").

Capitol Square because of its significance as the seat of

government and for the symbolic association that would be

drawn between the cross and the state government. Petition for

Writ of Certiorari at 4. The significance of this location as

suggesting endorsement cannot be overstated.*°

Moreover, the cross stands alone. Unlike the creche

in Lynch and the menorah in Allegheny, the cross is

unaccompanied by any secular or neutralizing symbols but

stands in stark isolation. Like the creche in Allegheny,

"nothing in the context of the display detracts from [its]

religious message." 492 U.S. at 598. The cross also is not

attended by live individuals to whom observers can attribute

the cross' religious message. As the Court observed in

Members of City Council v. Taxpayers for Vincent, 466 U.S.

789, 809 (1984), the difference between live speakers and

symbolic speech is that in the former situation, "individual

citizens [are] actively exercising their right to communicate

directly with potential recipients of their message." Accord

Allegheny, 492 U.S. at 599, 612 (where the Court noted the

affect that individuals have toward diffusing appearances of

endorsement). By contrast, with unattended religious

symbols, no one is available to associate with the message,

thus leaving observers to surmise the identity of the speaker.

The unattended symbol loses its value as independent speech.

This is what distinguishes unattended religious displays from

0 Accordingly, amici contend that the display of the

unattended menorah at the same location is equally invalid. The

issue of whether the state may distinguish between types of

religious symbols - the menorah and the cross - is not in doubt.

Government may not prefer one religion over another; nor may it

define one religion’s symbol as cultural or seasonal in order to

provide it with special access. Kiryas Joel, 114 S. Ct. at 2491.

the Widmar-type of equal access situations involving live

speakers. With no one present to claim authorship or

responsibility for the speech, the government becomes the

surrogate, the sponsor of the speech.*!

The duration of the display also suggests government

endorsement of the cross' religious message. As proposed in

Respondents’ application, the cross was to stand for a lengthy

period of time (sixteen days) in front of the State Capitol. The

semi-permanent nature of the cross highlights the appearance

of state endorsement by dominating the forum for an extended

period and excluding other speakers. Accord Doe v. Small,

964 F.2d at 629 (Flaum, J., concurring). Such appearances

of endorsement are especially likely for observers who may

pass by the unattended display several times during the sixteen

day period.

Finally, the unattended display of inherently religious

symbols at core government areas engenders religious

divisiveness, the avoidance of which has been a long-standing

goal of nonestablishment.” Religious divisiveness is a theme

31 Because of the other factors suggesting state

endorsement of private religious speech, the disclaimer sign is

ineffective to negate the endorsement. Allegheny, 492 U.S. at

600-01. Moreover, as is evident from photographic exhibit

reproduced in Petitioners’ Appendix A43, the size and physical

make-up of the sign render any disclaimer contained on the sign

ineffective to most passers-by.

32 See James Madison’s Letter to Thomas Jefferson of

August 20, 1785, commenting on the "mutual hatred" between

Presbyterians and Episcopalians that was "much inflamed by the

late act incorporating the latter." Alley, James Madison on

Religious Liberty at 69. See also Madison’s "Memorial and

that the Court has expressed in its Establishment Clause

decisions for many years.*? As Professor Phillip Johnson has

remarked, "[o]ne major objective of the First Amendment is

to keep the public peace on religious issues, and one way of

doing this is for every religious and antireligious group is to

feel that government is neither squarely on its side or squarely

on the other side." Johnson, Concepts and Compromise in

First Amendment Religious Doctrine, 72 Cal. L. Rev. 817,

839 (1984). Because religious controversies have the potential

to stir animosities, the Court has been wary of government

actions that inherently invite divisiveness among religious

groups. See Kiryas Joel, 114 S. Ct. at 2504 (Kennedy, J.,

concurring in the judgment); Lee, 112 S. Ct. at 2655-56.

Moreover, avoidance of religious divisiveness can be seen as

another goal of the endorsement test. Allegheny, 492 U.S. at

626-27 (O'Connor, J. concurring.). Religious divisiveness is

a natural outgrowth of perceptions that government has made

religion relevant to a person's standing in the political

community. /d.; accord Lynch, 465 U.S. at 687-88

(O'Connor, J., concurring) ( endorsements "foster the creation

of political constituencies defined along religious lines").

destroy that moderation and harmony" between religious sects

and lead to "animosities and jealousies, which may not soon be

appeased." Jd. at 58-59.

Remonstrance" arguing that the general assessment bill "will

3 PEARL v. Nyquist, 413 U.S. 756, 797-98 (1973)

(divisiveness is a "Warning signal no to be ignored"); Lemon v.

Kurtzman, 403 U.S. 602, 622-23 (1971); Walz v. Tax

Commission, 397 U.S. 644, 494 (1970); McCollum v. Board of

Educ., 333 U.S. at 217.

The erection of an inherently sectarian symbol such as

a cross near an important government building invites

religious divisiveness. As Justice Kennedy has recognized,

"(tJhe urge to use [religious symbols] to teach or taunt is

always present." Allegheny, 492 U.S. at 678 (Kennedy, J.,

concurring and dissenting). Nonadherents who perceive a

close relationship between the government and the religion

represented by the cross may feel that their beliefs are being

disfavored and may agitate for similar treatment. And, as

occurred in this case, opponents of the symbol’s message may

resort to vandalism or other violence. Pet. App. A4. As

Justice Stevens has observed, there is always a risk that the

visible display of a religious symbol "will offend nonmembers

of the faith being advertised and well as adherents who

consider the particular advertisement disrespectful." Jd. at

650-51 (Stevens, J., concurring in part and dissenting in part).

Instead of achieving ecumenical goals, religious displays tend

to emphasize religious differences and "foment .

disagreements." Jd.

The potential for religious divisiveness instructs against

allowing unattended, solitary religious symbols to be erected

at or near important government buildings. Regardless of

whether divisiveness is considered an aspect of endorsement

or as a complementary test, it is a factor that should be

considered when determining if a religious display violates the

Establishment Clause.

Considering the entire context of the cross display, its

.ocation next to the State Capitol, and the fact that it is an

unattended, free-standing religious symbol with no secular or

cultural attributes, this Court should find that government

endorsement of religion has occurred.

CONCLUSION

For the aforementioned reason, amici pray that the

Court reverse the decision of the Court of Appeals.

Samuel Rabinove

The American Jewish

Committee

165 East 56th Street

New York, New York

10022-2746

212/751-4000

Elliot M. Mincberg

People for the American

Way

2000 M. Street, NW, #400

Washington, DC 20036

202/467-4999

David Saperstein

Union of American Hebrew

Congregations

2027 Massachusetts Ave..,

Washington, DC 20036

202/387-2800

Respectfully Submitted,

Steven K. Green

(Counsel of Record)

Julie A. Segal

Americans United for

Separation of Church and

State

1816 Jefferson Place, NW

Washington, DC 20036

202/466-3234

Norman Dorsen

40 Washington Square,

South

New York, New York

10012

212/998-6233

John D. Shullenberger

Richard T. Cassidy

American Civil Liberties

Foundation of Vermont

100 State Street

P.O. Box 810

Montpelier, Vermont 05601

802/223-6304

App. 1

APPENDIX

Americans United for Separation of Church and State

is a national, nonsectarian public interest organization

committed to preserving the constitutional principles of

religious liberty and separation of church and state. Since its

founding in 1947, Americans United has participated either as

a party or as amicus in many of the leading church and state

cases decided by this Court, including filing an amicus brief

on behalf of the petitioners in Lam5'y Chapel v. Center

Moriches School District. Amzsicans United members adhere

to various religious f2iias, with some holding no religious

aftiliauion. iney are united, however, in their commitment to

the constitutional principle of church-state separation which,

at its core, prohibits government actions that create the

appearance of endorsement of religion.

The American Jewish Committee

The Americans Jewish Committee ("AJC"), a national

organization of approximately 50,000 members founded in

1906, is dedicated to the defense of the civil rights and

religious liberties of American Jews. These rights and

liberties, however, can only be secure for Jews when they are

equally secure for Americans of all other faiths. AJC is

committed to the belief that separation of religion and

government is the surest guarantee of religious liberty for all

and has proved of inestimable value to the free exercise of

religion in our pluralistic society. In the view of the AJC,

display of a Latin cross or menorah or any comparable

religious symbol in a public area represents official

App. 2

endorsement of a religious message that violates the

Establishment Clause of the First Amendment.

People For The American Way

People For the American Way ("People For") is a

nonpartisan, education-oriented citizens' organization

established to promote and protect civil and constitutional

rights, including First Amendment freedoms. Founded in

1980 by a group of religious, civic and educational leaders

devoted to our nation's heritage of tolerance, pluralism and

liberty, People For now has over 300,000 members

nationwide. People For has frequently represented parties and

filed amicus curiae briefs in litigation seeking to defend First

Amendment rights, including cases concerning freedom of

expression and separation of church and state. As in the

Lamb's Chapel decision, People For believes that both the

Free Speech Clause and the Establishment Clause of the First

Amendment must be applied in situations like this one

concerning religious expression and activities involving

government and public forums. People For has joined in

filing this amicus brief in order to help vindicate the important

First Amendment principles at stake in this case, particularly

the principle that the "no-endorsement" standard should

continue to be utilized in evaluating the constitutionality of

religious expression on government property.

The Union of American Hebrew Congregations (UAHC)

The Union of American Hebrew Congregations

(UAHC) represents 1.5 million Reform Jews in 850

congregations nationwide. For over a century, the UAHC has

fought for religious liberty and tolerance, believing these to be

App. 3

among the greatest gifts America has bestowed upon the

world. The UAHC has staunchly supported reading the

Establishment Clause of the First Amendment of the United

States Constitution as constructing a wall of separation

between church and state, and believes this wall has been

crucial to the freedom we, as a religious ‘minority, have

enjoyed in this country.

Americans Civil Liberties Foundation of Vermont

Americans Civil Liberties Foundation of Vermont,

Inc., is a state affiliate of the American Civil Liberties Union,

a national organization dedicated to preserving the principles

embodied in the Bill of Rights. ACLF of Vermont has

sponsored three cases in the last ten years which have asserted

that the display of an inherently religious symbol in a public

area, Closely associated with government, represents official

endorsement of religion and thus violates the Establishment

Clause. The decision of the court of appeals below conflicts

with the holdings of two of these cases, Chabad-Lubavitch v.

City of Burlington, 936 F.2d 109 (2d Cir. 1991), and Kaplan

v. City of Burlington, 891 F.2d 1024 (2d Cir. 1989).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.