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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 753

## Text

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,

V.

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

iV

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 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).

6

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

7

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

8

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).

9

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

10

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);

11

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).

© The Bible in the Public Schools - Arguments in the

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

12

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).

ee

pile raha eds

13

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).

14

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

15

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).

16

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

17

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.

18

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

\

19

(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.”).

20

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.

21

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.

22

(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

© The Sixth Circuit holding also ignores how official and
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. ).

23

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).

24

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).

25

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").

26

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.

27

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

Ve

28

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.

29

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..,
NW

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

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0730%3A11. Public record. Not legal advice.