Opposition Brief — Freedom From Religion Foundation, Inc. v. Colorado

No. 95-527

;

IN THE SUPREME COURT OF THE UNITED STATES~~-----—-~

October Term, 1995

THE FREEDOM FROM RELIGION FOUNDATION,

INC., a Wisconsin nonprofit corporation; THE

COLORADO CHAPTER OF THE FREEDOM FROM

RELIGION FOUNDATION, INC.; JEFF

BAYSINGER; HAROLD HUGULEY; GLENN V.

SMITH; and LEE WHITFIELD,

Petitioners,

VS.

THE STATE OF COLORADO; THE HONORABLE

ROY ROMER, Governor of the State of Colorado;

THE COLORADO DEPARTMENT OF

ADMINISTRATION; and FORREST M. CASON,

Executive Director of the Department of

Administration,

Respondents.

On Petition for Writ of Certiorari to

the Supreme Court of the State of Colorado

RESPONDENTS’ BRIEF IN OPPOSITION

GALE A. NORTON* DIANNE E. ERET

Attorney General of Colorado Assistant Attorney General

STEPHEN K. ERKENBRACK Attorneys for Respondents

Chief Deputy Attorney General

TIMOTHY M. TYMKOVICH Colorado Department of Law

Solicitor General 1525 Sherman Street, 5th Floor

PAUL FARLEY Denver, Colorado 80203

Deputy Attorney General Telephone: (303) 866-5228

MAURICE G. KNAIZER

Deputy Attorney General *Counsel of Record

QUESTION PRESENTED FOR REVIEW

Did the Colorado Supreme Court err in holding that the

State of Colorado may permit an historical monument com-

memorating the Ten Commandments to remain along with

many other historical artifacts in a park on the State Capitol

grounds without violating the Establishment Clause?

TABLE OF CONTENTS

PAGE

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

STATEMENT OF THE CASE ............... ]

REASONS FOR DENYING THE WRIT........ 3

I. THE OPINION BELOW IS MERELY

AN APPLICATION OF THE

SETTLED LAW OF THIS COURT. . 4

Il. THE DECISION BELOW IS CON-

SISTENT WITH THE HOLDINGS

IN STONE AND HARVEY. ....... 17

Il. THE INSTANT CASE TURNS ON

FACTUAL DETERMINATIONS

MADE BY THE TRIAL COURT

AND AFFIRMED BY THE COLO-

RADO SUPREME COURT; THE

OPINION ESTABLISHES NO NEW

PRINCIPLES OF LAW, IS LIMITED

AND FACT-BOUND, AND IS NOT

OF GENERAL IMPORTANCE OR

Poo 8 23

LW ac os ok cs ce occ cs OURS Ss 29

TABLE OF AUTHORITIES

CASES PAGE

Abington School District y, Schempp,

374 U.S. 203 og eee 10

Allegheny County y. American Civil

Liberties Union, 492 U.S.

scape carp-: PEERS Pee 5, 12-16, 18,

22-24, 26-28

Edwards y. Aguillard, 482 U.S.

wisicg) nos, REE 17, 18

669 (N.D. Ga. 1993), afPd mem..

15 F.3d 1097 (11th Cir.), cert

denied, 114 S. Ct. 2138 (1994) .. 17, 20, 22, 23

Hughes Tool Co. y, TWA, Inc., 409

U.S. 363 Wee ieee es. 20

Lee v. Weisman, 112 S. Ct. 2649 one a ee 18

Lemon y. Kurtzman, 403

U.S. 602 2) as ae 4, 5, 10, 18, 19, 24, 27

Lynch vy. Donnelly, 465 U.S.

biti ceivis,, Se 5-16, 18, 24-28

Stone y. Graham, 449 U.S. 39 (1980) .... 7, 9, 17-19

Wallace y. Jaffree, 472 U.S.

Biches REE PTE Te se

ieee aoe. +

No. 95-527

a

~se 8 eee

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

THE FREEDOM FROM RELIGION FOUNDATION,

INC., a Wisconsin nonprofit corporation; THE

COLORADO CHAPTER OF THE FREEDOM FROM

RELIGION FOUNDATION, INC.; JEFF

BAYSINGER; HAROLD HUGULEY; GLENN V.

SMITH; and LEE WHITFIELD,

Petitioners,

vs.

THE STATE OF COLORADO; THE HONORABLE

ROY ROMER, Governor of the State of Colorado;

THE COLORADO DEPARTMENT OF

ADMINISTRATION; and FORREST M. CASON,

Executive Director of the Department of

Administration,

Respondents.

On Petition for Writ of Certiorari to

the Supreme Court of the State of Colorado

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Respondents perceive the following misstatements of

fact in the petition. See Rule 15.2, Rules of the Supreme

Court of the United States (Oct. 2, 1995).

The petition’s description of the face of the monu-

ment (Pet. at 2) omits some of the symbols that the court

below concluded were reflective of religious diversity as well

as secularism, ultimately contributing to the monument’s

consistency with the "melange of historical commemorative

accounts" and "rich cultural diversity" that make up the

setting. Pet. App. E24-25.

The petition at 2 states that the monument’s text

includes an “exhortation”; the court below did not find these

words constituted exhortation.

The petition at 3 states "There are a number of

similar monuments located on public grounds around the

United States"; the court below found that monuments were

donated to “several local and state governments, including

Colorado” with no indication that any such monuments are

currently extant elsewhere. Pet. App. E9.

The petition states that the monument was “part of a

nationwide campaign to instill the principles of God’s mes-

sage to Moses in youngsters." Pet. at 3. However, the

court below found that based on a belief that youngsters

were “without any code of conduct or standards by which to

govern their actions," a juvenile court judge thought "they

could benefit from exposure to one of mankind’s earliest

codes of conduct," to demonstrate that there were long

“recognized codes of behavior to guide and help them"; this

program “was not to be a religious instruction of any kind."

Pet. App. E8.

The petition at 5 states that the monument is

“maintained by the State"; the court below found that “The

State does not allocate funds to maintain the monument."

Pet. App. E9. There was also testimony that if the

monument wer: in need of repair the State would have

recourse to the Eagles. R. vol. 3, p. 69, ll. 8-11.

oo

The petition states that the court below decided that

the setting “secularizes the monument." Pet. at 5.

However, the court below held "[T]he monument’s content

and its setting among several much more prominent

monuments in Lincoln Park and throughout the Capitol

Complex Grounds sufficiently neutralize its religious

character resulting in neither an endorsement nor a

disapproval of religion." Pet. App. E12.

The petition at 6 states that "There is nothing in the

immediate vicinity of the Ten Commandments monument,"

and that none of the other objects have any relevance to the

Ten Commandments monument; in fact, the court below

held precisely to the contrary. Pet. App. E23-24.

REASONS FOR DENYING THE WRIT

Introduction

In a highly fact-bound and narrow decision the

opinion below closely followed the dictates of this Court in

its Establishment Clause jurisprudence. The Colorado

Supreme Court not only did not contradict any principle

previously enunciated by this Court, but it in fact tied its

holdings at every step of the way to principles previously

enunciated by this Court.

The petition is replete with incorrect generalizations.

For instance:

This ruling has no foundation in law or fact

and must not be allowed to stand. It is in

direct conflict with this Court's decisions in

Allegheny County and Stone, and with the de-

cision of the United States Court of Appeals

for the Eleventh Circuit in Harvey.

Pet. at 5 (citations omitted). However, upon examination

these statements do little more than assume a conclusion.

The petition provides little, if any, specification as to exactly

how the Colorado ruling is in conflict with the cited cases,

except by way of the most superficial and ultimately mislead-

ing statements.

The petition meets none of the requirements specified

in Rule 10, Rules of the Supreme Court of the United States

(Oct. 2, 1995). Specifically, the Colorado Supreme Court

has not "decided an important federal question in a way that

conflicts with the decision of any other state court of last

resort or of a United States court of appeals"; nor has it

"decided an important question of federal law that has not

been, but should be, settled by this Court"; nor has it

"decided an important federal question in a way that conflicts

with relevant decisions of this Court." At best, the petition

is predicated upon erroneous factual findings, or the

misapplication of a properly stated rule of law.

I. THE OPINION BELOW IS MERELY AN

APPLICATION OF THE SETTLED LAW

OF THIS COURT.

With only rare exception, this Court has applied the

three tests developed in Lemon v. Kurtzman, 403 U.S. 602

(1971), to Establishment Clause cases. The tests are: that

the governmental activity have a secular purpose; that its

principal or primary effect be one that neither advances nor

inhibits religion; and that it not foster an excessive

government entanglement with religion. 403 U.S. at 612-13.

The leading cases applying the Lemon tests to government

display of objects with religious significance are Lynch v.

Donnelly, 465 U.S. 668 (1984) and Allegheny County v.

American Civil Liberties Union, 492 U.S. 573 (1989). The

opinion below is fully consistent with both Lynch and

Allegheny County.

A. The Opinion Below is Consistent

with Lynch.

Three of the principal teachings of Lynch are particu-

larly relevant to the instant case: first, governmental action

that constitutes acknowledgment of this country’s religious

heritage does not violate the Establishment Clause; second,

courts may not use an “absolutist approach” in Establishment

Clause analysis; and third, the Lemon test should be applied

using the concept of the reasonable observer. The opinion

below correctly employs each of these three teachings of

Lynch.

1, Acknowledgment of Religious Heri-

tage

This Court’s opinion in Lynch surveyed the numerous

historical and commonplace ways in which government

acknowledges this country’s religious heritage. The Court

said:

There is an unbroken history of official

acknowledgment by all three branches of gov-

ernment of the role of religion in American

life from at least 1789.

465 U.S. at 674. The Court then chronicled numerous

"examples of reference to our religious heritage” in

governmental actions, including the employment of

legislative chaplains with public funds; allowing public

school children to be released from classes to attend religious

exercises; national holidays such as Thanksgiving and

Christmas which had their genesis as solely religious

observances; the statutorily prescribed national motto of "In

God We Trust" which appears on our currency; and the

display of works of art with religious themes in public art

galleries. The Court then noted that "There are countless

other illustrations of the Government’s acknowledgment of

our religious heritage and governmental sponsorship of

graphic manifestations of that heritage." Jd. at 677. It

found inescapable the conclusion that “our history is

pervaded by expressions of religious beliefs." Jd. The

Court held that each of these acknowledgments is permissible

under the Establishment Clause.

The opinion below closely tracks this holding of

Lynch: the presence of the Ten Commandments monument

amidst various other symbols of our culture and history is a

permissible acknowledgment of our religious heritage, and

even more, of our respect as a people for the rule of law.!

The opinion below repeatedly reiterates and approves

the trial court’s conclusion that the Ten Commandmen‘s

monument is one of a number of monuments which "overall

contain symbols of various historic events or concepts

' For instance, the opinion recounts the eloquent testimony of

one witness that the monument could be seen as "a monument to

the fact that we as a republic are a people who pay attention to

law." Pet. App. E23 n.17.

associated with American history." Pet. App. Ell. The

Colorado Supreme Court concluded that:

The various monuments found around the

park in fact represent a cornucopia of differ-

ent cultural events and experiences that make

up the history of our nation and reflect upon

a history that is also Colorado. . This

collection of monuments. . . [is] an acknow!-

edgment of the cultural tapestry that is

Colorado.

Pet. App. E24. These findings do no more than mirror the

sort of acknowledgment of our religious heritage that Lynch

found permissible.

2. Non-Absolutist Approach

The second teaching of Lynch is that Establishment

Clause analysis should not be “absolutist.". Without using

the term itself, the petition argues for the absolutist approach

that Lynch rejected, focusing exclusively on the religious

aspects of the monument and ignoring its setting as one of

many artifacts of American and Colorado history present in

the Capitol Complex Grounds.

The petition alleges that the opinion below is "in

direct conflict" with the holding in Stone solely because that

case found that the Ten Commandments are "undeniably a

sacred text in the Jewish and Christian faiths." Pet. at 5, 7.

In other words, petitioners maintain that the religious

component of the Ten Commandments makes their display

per sé unconstitutional. This is not a holding of Stone, nor

is it a principle this Court has enunciated elsewhere.

To the contrary, the Lynch Court recounted the

ubiquity of official acknowledgment of our religious heritage

throughout this country’s history, and then noted:

This history may help explain why the Court

consistently has declined to take a rigid, abso-

lutist view of the Establishment Clause... .

Rather than mechanically invalidating all

governmental conduct or statutes that confer

benefits or give special recognition to religion

in general or to one faith -- as an absolutist

approach would dictate -- the Court has scru-

tinized challenged legislation or official

conduct to determine whether, in reality, it

establishes a religion or religious faith, or

tends to do so.

465 U.S. at 678.?

The Colorado Supreme Court correctly followed the

non-absolutist approach of Lynch, noting:

While the text of the Ten Commandments

affixed to a monument would not be appropri-

ately placed on state property standing alone,

here the Ten Commandments monument and

its countervailing secular text fits within the

melange of historical commemorative ac-

counts found in Lincoln Park.

Pet. App. E24-25 (emphasis in original).

~—_—_ --

? See also id. at 680 ("Focus exclusively on the religious

component of any activity would inevitably lead to its invalidation

under the Establishment Clause.").

8

The court below stated it would not automatically

impute a religious purpose or effect to every government

action that in some way implicated religion; it instead

applied the correct constitutional standard. "{A]ny religious

meaning of legal consequence must ultimately flow from the

character of the state action as perceived by an objective

observer, but does not turn on whether the message, though

secular, also has religious value." Pet. App. E26.

Applying the Lynch analysis overall to the instant

case, the evident purpose of including the Ten Command-

ments monument in the larger display of the Capitol

Complex Grounds was not promotion of its religious content,

but celebration of our country’s heritage through display of

one of the traditional historic origins of Western Civilization:

The record does reflect, however, through the

testimony of several state employees, that the

State’s purpose in accepting any monuments

in that park is not to endorse the message

depicted in the various monuments, but rather

to open the public park up to all different

types of groups interested in utilizing the

valuable state grounds.

Pet. App. E23.’ Such a celebration is a legitimate secular

* Contrary to the petitioners’ argument (Pet. at 6-7), this Court

has never said that the Ten Commandments may be afforded

public recognition only in the context of /egal traditions or legal

history. See, e.g., Lynch, 465 U.S. at 677 (“notable and

permanent" depiction of Moses with the Ten Commandments in

courtroom); and Stone, 449 U.S. at 42 (Ten Commandments and

the Bible "may be constitutionally used in an appropriate study of

history, civilization, ethics, comparative religion, or the like”)

(continued...)

purpose, even if the symbol itself also has religious aspects.

Pursuant to Lynch, the court below correctly focused on the

State’s overall purpose in landscaping the Capitol Complex

Grounds and the consequent effect of non-endorsement, not

the inclusion of the Ten Commandments alone.

ae Reasonable Observer Standard

The Lynch opinion makes clear that the belief of some

observers that a government’s display constitutes an endorse-

ment of religion does not lead to an invalidation of the

conduct under the Lemon test. The Lynch majority rejected

the dissent’s assertion that a display becomes unconstitutional

if "some observers . . . perceive that the City has aligned

itself with the Christian faith by including a Christian symbol

in its display and that this serves to advance religion." 465

U.S. at 683. The concurrence of Justice O’Connor seconds

this notion, adding that the perspective of the reasonable

observer should be the proper focus of the inquiry. See also

id. at 688 (a display makes adherence to a religion relevant

to a person’s standing in the political community if it "sends

a message to nonadherents that they are... not full

members of the political community, and an accompanying

message to adherents that they are . . . favored members of

the political community") (O’Connor, J., concurring).

The standard articulated by Justice O’Connor is not

what any viewer, but what a reasonable viewer would be-

lieve or perceive. The concurrence focuses on “what

viewers may fairly understand to be the purpose of the

display." 465 U.S. at 692-93. What a reasonable observer

*(.. continued)

(citing Abington School District v. Schempp, 374 U.S. 203, 225

(1963)).

10

would perceive is in turn dependent on the setting or context

in which the display appears.

It is clear that not all observers may be reasonable or

neutral viewers who “fairly understand" the purpose and

effect of a display. For instance, testimony in the instant

case indicated that some had protested the existence of a

Civil War monument on the Capitol Complex Grounds;

others who are pacifists might disagree that symbols of U.S.

military history should be displayed. Similarly, Petitioners

focus upon the religious nature of the Ten Commandments.

The Colorado Supreme Court, however, followed

Lynch and correctly inferred it could be “fairly understood”

that in light of the purpose of the overall display, and in the

context of the Capitol Complex Grounds, the Ten Command-

ments monument does not send a message of government

endorsement of religion. Given the surrounding monuments

even "in the immediate vicinity" (Pet. App. E23) of the Ten

Commandments monument, let alone in the Capitol Complex

Grounds as a whole, "In essence, the monument is found in

what is much like a museum setting which, ‘though not

neutralizing the religious content of a religious painting,

negates any message of endorsement of that content.’” Pet.

App. E24.‘

Similar to the “history and ubiquity" that Justice

O’Connor associated with the Lynch display, the testimony

of record throughout this case shows that Americans in

* The opinion below thus correctly summarized the reasonable

observer approach: "The message the object conveys in context

is also significant in a determination of whether the display has the

effect of endorsing religion, because the context may affect the

message a reasonable observer would derive from the setting."

Pet. App. E23.

11

general regard the Ten Commandments as not only religious

doctrine associated with Christianity and Judaism, they view

them in a generic sense as being synonymous with the rule

of law and with the roots of American jurisprudence. See

Pet. App. E10 ("[T]he Ten Commandments are the basis for

many of our secular laws.") See also Pet. App. E22 ("[T]he

historical fact [is that] the Ten Commandments has served

over time as a basis for our national law."). Accord Lynch,

465 U.S. at 691 (permissible secular objectives described as

"instilling most of the values of the Ten Commandments and

illustrating their connection to our legal system.").

While some would not have it so, the Ten Command-

ments have a distinct “history and ubiquity” in American

culture. They have become part of the warp and woof of

Western civilization in general and of American civilization

in particular. As the court below found, as displayed in this

setting the Ten Commandments monument constitutes no

more than a “recognition of a historical, jurisprudential

comerstone of American legal significance.” Pet. App. E27.

B. The Decision Below is Consistent

with Allegheny County.

The dec.ion below is completely consistent with

Allegheny County, in which this Court decided the consti-

tutionality of two separate displays, one a creche, the other

a menorah.’ The discussion of Allegheny County in the peti-

tion consists almost solely of the statement that since the

creche and the menorah were "treated as separate displays"

in Allegheny County, the Ten Commandments monument in

* The Allegheny County analysis, however, must be employed

with care, since only a portion of the decision represents the

opinion of a majority of the Court.

12

the instant case must be separated from all the other monu-

ments on the Capitol Complex Grounds. Pet. at 6. This, of

course, ignores the fact that there was no question but that

the two displays in Allegheny County were separate, and

there was no finding or even allegation to the contrary refer-

enced in the opinion of the Court. In the instant case, the

trial court as finder of fact heard evidence from both sides,

including the petitioners’ allegation that this one monument

somehow stood alone, unlike all the other monuments on the

Capitol Complex Grounds. That court nonetheless made the

determination that the subject monument was not separate

from all its counterparts, a finding that was merely affirmed

by the Colorado Supreme Court.

The opinion of the Court in Allegheny County draws

much support from both the Lynch majority and Justice

O’Connor’s concurrence therein. It affirms the three

principles of Lynch discussed above. First, the Court

is this country’s heritage. "This Nation is heir to a history

and tradition of religious diversity that dates from the

settlement of the North American continent." 492 U.S. at

589. It went on to affirm that government may acknowledge

the cultural aspects of a religious object or event. Id. at

601.

Second, Allegheny County rejected the absolutist

approach that would disallow any display of a religious

object purely because the object has such an aspect, i.e.,

focusing exclusively on the object’s religious aspect and

disregarding its surrounding context or setting. Allegheny

County notes that while an object such as a creche is cer-

tainly capable of communicating a religious message, for

purposes of its constitutionality the effect of the display in

actuality “turns on its setting." 492 U.S. at 598. The Court

compared the creche display to the permissible display in

13

Lynch, and concluded that "in this context" the display was

impermissible. 492 U.S. at 602. The Court stated that its

endorsement inquiry “examines the particular contexts in

which the government employs religious symbols." Jd. at

606. "[T]here is no hiding behind the fiction that Lynch

decides the constitutionality of every possible government

creche display." Id. at 609 n.57.

Third, the Allegheny County opinion utilized the

reasonable observer approach which prohibits "making

adherence to a religion relevant in any way to a person’s

standing in the political community." Jd. at 594, quoting

Lynch, 465 U.S. at 687. "The effect of the display depends

upon the message that the government’s practice com-

municates: the question is ‘what viewers may fairly

understand to be the purpose of the display,’" which "of

necessity, turns upon the context in which the contested

object appears." The Court reiterated the Lynch observation

that a museum setting negates any message of endorsement

of religious content. 492 U.S. at 595.°

Allegheny County then employed these principles to

Closely examine the context of the creche, finding the display

to be impermissible. With respect to the creche, the opinion

of the Court turned on the conclusion that the government

was sending an “unmistakably clear" religious message of

support and praise to a Christian God for the birth of Jesus,

with "[N]othing in the context of the display [to] detract

* See also 492 U.S. at 597 ("[TJhe government’s use of

religious symbolism is unconstitutional if it has the effect of

endorsing religious beliefs, and the effect of the government’s use

of religious symbolism depends upon its context," noting that these

principles have been adopted and utilized by the Court in cases

subsequent to Lynch). (Blackmun, J., joined by Stevens, J.,

concurring.)

14

from [this] religious message." 492 U.S. at 598, 600. See

also id. at 601-02 ("[The county] has chosen to celebrate

Christmas in a way that has the effect of endorsing a patently

Christian message: Glory to God for the birth -of Jesus

Christ. Under Lynch, and the rest of our cases, nothing

more is required to demonstrate a violation of the

Establishment Clause.").

Thus, Allegheny County supports the decision below.

Here, there is no message appended to the Ten Command-

ments monument, such as "Glory to God in the Highest for

having given us this code of religious conduct." The

monument bears no banner or other indication that the State

or anyone else is praising God for the giving of the Com-

mandments; the State is thus not sending an “unmistakable

message of support and promotion of Christian praise to

God,” or “suggesting that people praise God for” the Com-

mandments. Instead, to a reasonable observer, in its context

of the Capitol Complex Grounds, the Ten Commandments

monument is like all the other monuments contained therein:

the State is acknowledging the Commandments as a cultural

phenomenon and part of our American heritage and history,

along with the numerous other such displays found there.

Finally, there is a striking parallel between the

Allegheny County Court’s description of the permissible

creche in Lynch and the Colorado Supreme Court’s descrip-

tion of the Ten Commandments monument. In Allegheny

County the Court said:

Here, unlike in Lynch, nothing in the context

of the display detracts from the creche’s reli-

gious message. The Lynch display comprised

a series of figures and objects, each group of

which had its own focal point. . . . [Tjhere

were objects of attention separate from the

15

creche [having] their specific visual story to

tell. ... Here, in contrast, the creche stands

alone: it is the single element of the display

on the Grand Staircase.

492 U.S. at 598.

In the instant case, the court below "reiterated in

detail the evidence in the record and the facts derived at

trial" (Pet. App. E4-6), concluding that:

As the trial court found, the Ten Command-

ments monument in this case does not stand

alone and is not a conspicuous feature of

Lincoln Park. In the immediate vicinity . .

are both the much larger Martinez Statue and

the larger drinking fountain monument; sec-

ular monuments similar to those are also

found throughout the Capitol Complex

Pet. App. E23-24. See also Pet. App. E24 ("The various

monuments found around the park in fact represent a cornu-

copia of different cultural events and experiences that make

up the history of our nation and reflect upon a history that is

also Colorado. . . . This collection of monuments celebrates

a history of standing up against oppression, foreign and

domestic, and an acknowledgment of the cultural tapestry

that is Colorado."). This conclusion is based on a multitude

of evidence of record and stands in sharp contrast to the

allegation that the Ten Commandments monument "stands by

itself." Pet. at 6.

Therefore, similar to the creche in Lynch, and unlike

the creche in Allegheny County, the display comprises a

series of objects in the Capitol Complex Grounds or even in

16

only Lincoln Park itself. There are objects of attention

separate from the monument, each with its own focal point,

secular symbols with visual stories to tell, and the Ten

Commandments monument cannot be characterized as the

single element of the display.

Il. THE DECISION BELOW IS CONSIS-

TENT WITH THE HOLDINGS IN STONE

AND HARVEY.

The petitioners misread Stone v. Graham, 449 U.S.

39 (1980) and Harvey v. Cobb County, Ga., 811 F. Supp.

669 (N.D. Ga. 1993), aff'd mem., 15 F.3d 1097 (11th Cir.),

cert. denied, 114 S. Ct. 2138 (1994). The opinion below is

not inconsistent with the holdings in either of these cases.

A. The Decision Below Does Not Con-

flict with Stone.

The petition alleges that because the Ten Command-

ments were found to be a sacred text in Stone, the opinion

below is in conflict with Stone. Pet. at 5,7. Stone has little

if any relevance to the instant case. However, the fact that

the petitioners beli it directly conflicts with the opinion

First, the petition’s reliance on Stone ignores this

Court’s injunction that school setting cases constitute a

distinct and specialized area of Establishment Clause law,

and are not indiscriminately applicable to display cases

outside the school setting. Edwards v. Aguillard, 482 U.S.

578, 583-85 (1987) (citing Stone). This Court has made

Clear that when it is dealing with displays in non-school

17

locations, its touchstones are the analyses in Lynch and

Allegheny County; conversely, but equally clearly, the

Court’s analysis in school setting cases like Stone is

specialized and particularized to that context. The Stone

opinion itself underscored the Court’s unique school-setting

analysis, in that every case cited, other than Lemon, is a

school setting case.

In Stone this Court stated that school setting cases

constitute a distinct and specialized area of Establishment

Clause law, and are not indiscriminately applicable to display

cases outside the school setting. Accord Allegheny County,

492 U.S. at 594 (rejecting the applicability of Stone and

noting "Closer to the facts of this litigation is Lynch."). In

Lee v. Weisman, 112 S. Ct. 2649 (1992), the Court affirmed

its special Edwards approach for school cases, noting its

“heightened concerns with protecting freedom of conscience

from subtle coercive pressure in the elementary and

secondary public schools." 112 S. Ct. at 2658. In Wallace

v. Jaffree, 472 U.S. 38, 81 (1985), Justice O’Connor,

concurring, said that what is permissible in the non-school

setting is not dispositive of what is permissible in the school

setting. Her statement obviously implies the converse as

well: what is impermissible in the school setting is not

dispositive of what is impermissible in the non-school

setting.

Next, Stone is in no way analogous or even relevant

to the instant case. First, Stone, in fact, concerned the

constitutionality of a Kentucky statute; second, the holding

tumed on the government’s impermissible purpose in

enacting the statute; and third, the holding was firmly based

in its school setting. In contrast, in the instant case the

placement of the monument has no genesis in a statute;

petitioners do not appear to allege that the State’s purpose is

18

unconstitutional; and the Colorado monument is not located

in a school setting.

Stone is simply a brief per curiam opinion in which,

based on the particular facts presented therein, this Court

found that the State violated the first part of the Lemon test

because the challenged legislation had no secular legislative

purpose. 449 U.S. at 41. Rather, the government’s sole

purpose in enacting a law requiring display of the Command-

ments on school walls was religious, and therefore the statute

was unconstitutional. Jd. at 41. From this simple and

limited holding, petitioners would engraft a much expanded

principle that since the Stone Court stated that the Ten

Commandments were a text sacred in the Jewish and Chris-

tian faiths, they may not constitutionally be displayed.

The Stone opinion further noted that the Ten Com-

mandments were not integrated into the school curriculum,

and drew the following central conclusion:

Posting of religious texts on the wall serves

no such educational function. If the posted

copies of the Ten Commandments are to have

any effect at all, it will be to induce the

schoolchildren to read, meditate upon,

perhaps to venerate and obey, the Com-

mandments. [This is] mot a permissible state

objective under the Establishment Clause.

449 U.S. at 42 (emphasis added).

As has been discussed, in sharp contrast, the Ten

Commandments monument in this case serves a number of

predominant secular objectives.

19

B. The Opinion Below Does Not Con-

flict with Harvey.

The petition states that the opinion below is in direct

conflict with the decision of the Court of Appeals for the

Eleventh Circuit in Harvey because a display of the Ten

Commandments was found unconstitutional therein. Pet. at

5, 8. Such a conclusion totally ignores the clear mandate of

this Court that each display must be considered in its

particular context and setting, as has been discussed.

Also, although the opinion of the U.S. District Court

for the Northern District of Georgia was affirmed without

opinion by the Court of Appeals for the Eleventh Circuit and

this Court denied certiorari, this Court’s denial of certiorari

does not confer precedential value on the merits of a lower

court decision. Hughes Tool Co. v. TWA, Inc., 409 U.S.

363, 365 n.1 (1973). Even so, the opinions do not conflict:

given the significant factual differences in the two cases,

they are fully consistent.

First, the central and controlling factual difference in

the cases is that in Harvey the trial court as the finder of fact

found that the framed panel was the only element of the dis-

play’s setting. "[T]he display stands alone in the alcove, and

there are no countervailing secular passages or symbols."

811 F. Supp. at 678.

This is a far cry from the record in the instant case.

While the petitioners argued to the trial court that the Ten

Commandments monument was isolated, that it stood alone

and apart from the other monuments and tributes in Lincoln

Park, the trial court disagreed. The Colorado Supreme

Court affirmed the trial court’s factual finding that the

monument is “displayed among other monuments and

tributes on the grounds of the State Capitol” Pet. App. E3;

20

it is set “among several much more prominent monuments in

Lincoln Park and throughout the Capitol Complex Grounds"

Pet. App. El2. "As the trial court found, the Ten

Commandments monument in this case does not stand alone

and is not a conspicuous feature of Lincoln Park. In the

immediate vicinity . . . are both the much larger Martinez

Statue and the la:_.r drinking fountain monument; secular

monuments similar to those are also found throughout the

Capitol Complex Grounds . . . ." Pet. App. E23-24; [there

is a] "collection of monuments . . . an acknowledgement of

the cultural tapestry that is Colorado. . . . [and a] melange

of historical commemorative accounts found in Lincoln

Park." Pet. App. E24-25.

The second significant and controlling factual differ-

ence in the cases was in the explicitly religious nature of the

content of the Georgia panel: the Georgia court emphasized

that the framed panel contained both the Ten Commandments

and what is known as the "Great Commandment," which is

explicitly attributed to Jesus of Nazareth.’ It was this

inclusion that led the Georgia trial court to find that, "[T]he

Great Commandment . . . emphasizes the religious nature of

the panel and its association with the Christian tradition."

811 F. Supp. at 677.

In the instant case, the Colorado Supreme Court

affirmed the trial court’s finding that the version of the Ten

Commandments on the monument “was not identified with

any particular religious group" Pet. App. E8; "The monu-

ment at issue here does not reproduce exactly the Ten

Commandments as accepted by any particular sect." Pet.

App. E21. The Colorado Supreme Court also found that the

7 "Thou shalt love the Lord thy God with all thy heart, and

with ali thy soul, and with all thy mind; [and] Thou shalt love thy

neighbor as thy self.” 811 F. Supp. at 677.

21

face of the monument itself contained a “countervailing

secular text" (Pet. App. E24) because its many secular and

patriotic symbols (Pet. App. E21) created a "melange of

civil, political, cultural, and religious meanings." Pet. App.

Ell and E24-25. Also unlike the Georgia display, the

Colorado monument itself contains a clear indication that it

was not a creation of the State, but presented by the

Fraternal Order of Eagles.

These significant factual differences naturally lead to

different results. The Georgia court stated: "The Court

concludes that the panel, when considered in its context, has

the effect of endorsing religion in general and Christianity in

particular and therefore violates the Establishment Clause."

811 F. Supp. at 678. The Colorado Supreme Court stated:

"We find that, considering the monument and its placement

in the park as well as the proximity of other monuments, the

Ten Commandments monument is not isolated and, as dis-

played in Lincoln Park, does not convey a primarily

religious message." Pet. App. E26.

The Georgia court’s holding turned on the context of

the display; similar to the creche in Allegheny, “Here, too,

the display stands alone in the alcove, and there are no

countervailing secular passages or symbols.” 811 F. Supp.

at-678. Such a description is unlike the setting of the Ten

Commandments monument reviewed by the Colorado

Supreme Court: "While the text of the Ten Commandments

affixed to a monument would not be appropriately placed on

State property standing alone, here the Ten Commandments

monument and its countervailing secular text fits within the

melange of historical commemorative accounts found in

Lincoln Park.” Pet. App. E24-25 (emphasis in original).

Finally, the : of the opinions is highliehted

by the remedy specified in Harvey. The Harvey Court

22

stayed its order requiring removal of the panel to give the

County, "an opportunity to include the panel in a larger

display of non-religious, historical items, which may bring

it within constitutional parameters." 811 F. Supp. at 671.

This is precisely the current state of affairs with respect to

the Colorado monument as found by both the trial court and

the Colorado Supreme Court, i.e., the monument is part of

a larger display of non-religious historical items. The rem-

edy proposed by the Harvey Court describes the conclusion

reached by the Colorado court concerning the monument as

it currently exists in Colorado.

Il. THE INSTANT CASE TURNS ON FAC-

TUAL DETERMINATIONS MADE BY

THE TRIAL COURT AND AFFIRMED

BY THE COLORADO SUPREME

COURT; THE OPINION ESTABLISHES

NO NEW PRINCIPLES OF LAW, IS

LIMITED AND FACT-BOUND, AND IS

NOT OF GENERAL IMPORTANCE OR

APPLICABILITY.

This Court has said that Establishment Clause cases

require courts to engage in careful scrutiny of challenged

government practices. There is no question but that such

scrutiny is highly fact-specific and context-specific. Analysis

must be done on an individualized basis, applying the prin-

ciples enunciated by this Court. In the instant case, the issue

of what a reasonable observer may fairly understand to be

the message of the monument, as presented in its particular

physical setting, is central. This determination must, in the

first instance, be firmly grounded in a trial court’s factual

determinations. This Court has characterized its "endorse-

ment formulation" as "fact-intensive." Allegheny County,

492 U.S. at 608.

23

This Court has made the precept of the individualized

nature of each Establishment Clause inquiry clear in both

Lynch and Allegheny County.

In each case, the inquiry calls for line

drawing; no fixed, per se rule can be

framed. ... The line between permissible

relationships and those barred by the [Es-

tablishment Clause is not] straight and

unwavering. ... The Clause erects a “blur-

red, indistinct, and variable barrier depending

on all the circumstances of a particular

relationship."

Lynch, 465 U.S. at 678-79 (quoting Lemon, 403 U.S. at

614). See also id. at 692-94 (O’Connor, J., concurring)

("Every government practice must be judged in its unique

circumstances to determine whether it constitutes an

endorsement or disapproval of religion.*).

Allegheny County reiterated the standards set out in

Lynch.

[Our present task is to determine whether the

display of the creche and the menorah, in

their respective “particular physical settings, "

has the effect of endorsing or disapproving

religious beliefs.... Under the Court’s

holding in Lynch, the effect of a creche

display turns on its setting... .

492 U.S. at 597-98. Further, the Court stated that its

endorsement inquiry “examines the particular contexts in

which the government employs religious symbols," id. at

606, acknowledging “the inevitably fact-specific nature of the

question whether a particular governmental practice signals

24

the government’s unconstitutional preference for a specific

religious faith." Jd. at 607-08. "[T]he effect of the

government’s use of religious symbolism depends upon its

context." Id. at 597.

In this case, the determination of the context or set-

ting in which the display is located and against which its

constitutionality must be judged is a pivotal finding of fact

that is central to subsequent legal analysis of consti-

tutionality. The trial court heard extensive testimony and

also, at the request of petitioners, personally viewed the

monument and its setting and context. Based on a wealth of

evidence of record, the trial court determined the “particular

facts" of this matter. Pet. App. L4. It found that from “a

view overall of its setting" and "as presented in its surround-

ings" (Pet. App. L10), the monument was one of "a number

of monuments"; “there are many monuments on the state

capitol grounds." Pet. App. L6. The court acknowledged

the inconspicuous nature of the monument, noting that

though the judge had passed by it "scores of time on foot,"

he could not identify its location until requested to visit it by

the petitioners. Pet. App. L6.* The finder of fact thus

rejected the petitioners’ allegation that the monument stood

alone or was somehow isolated from its counterparts.

The Colorado Supreme Court was similarly well-

aware of the fact-based foundation necessary to proper legal

analysis in Establishment Clause display cases. Throughout

* Prior to this litigation, the monument in question has stood

unchallenged and indeed largely unnoticed for over 30 years;

similar to the creche in Lynch, its existence has been “marked by

no apparent dissension.” 465 U.S. at 684. Even one of the

petitioners himself testified that he may have seen the monument

previously, but did not know what it was becavse there were a lot

of monuments there. R. vol. 2, p. 36, Il. 8-14.

25

the opinion it is clear that the court was fully mindful of this

principle. For instance, at the very start of its opinion, the

court noted that its conclusion was drawn "under the facts of

this case." Pet. App. E3. This perspective was then further

emphasized:

[T]he evidentiary facts presented to the trial

court . . . are essential to a complete under-

standing of this case. Therefore, we reiterate

in detail the evidence in the record and the

facts derived at trial.

Pet. App. E4. An examination of the text of the findings

themselves emphasizes the specific fact-bound and narrow

character of the holding, e.g., "on the record before us".

Pet. App. E25.°

The opinion below establishes no new principles of

Establishment Clause law. Rather, it closely follows and

applies the principles well-established in this Court’s juris-

prudence. Repeatedly throughout the opinion, the court

below sought guidance from this Court’s previous decisions,

having frequent recourse to the exact words of Lynch and

Allegheny County. For instance, the opinion below cites to

® See also Pet. App. E25-26: “Establishment Clause cases

require highly fact specific scrutiny which must be approached on

a case-by-case basis. . . . The controlling question in this case is

what a reasonable observer might fairly understand to be the

primary message of the monument, as displayed in its particular

setting. We find that, considering the monument and its placement

in the park as well as the proximity of other monuments, the Ten

Commandments monument is not isolated and, as displayed in

Lincoln Park, does not convey a primarily religious message. . . .

[U]nder the particular circumstances before us today... ."

(Emphasis added.)

26

Allegheny County’s utilization of the Lynch standard that "the

effect of the government’s use of religious symbolism

depends upon its context." Pet. App. E17. Citing Allegheny

County, 492 U.S. at 595, the opinion states:

[T]he constitutionality of the Ten Command-

ments monument in this case will depend

upon whether the display has the purpose or

effect of endorsing or disapproving of

religion. Resolution of that issue will rest in

large part on the particular content and

physical setting of the monument.

Pet. App. E21.

The opinion again mirrors Allegheny County as

follows:

The message the object conveys in context is

also significant in a determination of whether

the display has the effect of endorsing reli-

gion, because the context may affect the

message a reasonable observer would derive

from the setting.

Pet. App. E23.

After an exhaustive review of the evidence of record,

and of the legal standards set out in Lynch and Allegheny

County, the Colorado Supreme Court made its findings. The

opinion repeatedly stresses that it is “applying the legal

standard set forth in Lemon as modified by Allegheny

County." Pet. App. E27.'° The opinion below specifies that

” See also Pet. App. E26 ("[A]pplying the objective observer

test under the particular circumstances before us today.").

27

iit i i a i il

“after applying that test to the undisputed evidence and the

findings set forth by the trial court," the trial court’s

conclusion of constitutionality was correct.

Petitioners argue that the court below erred in deter-

mining the context or setting of the monument, i.e., that it

is only one of many monuments comprising the Capitol

Complex Grounds; they instead substitute their own determi-

nation that the monument is "“isolated.""' However, this

dispute itself merely serves to point up the limited and fact-

bound nature of the decision. The opinion below deals

solely with the monument’s very particularized setting in

Colorado, “*:j establishes no new general principles of law.

To the contrary, throughout its opinion the Colorado

Supreme Court continuously has reference to the landmark

decisions of this Court in Lynch and Allegheny County, and

the legal principles enunciated in those cases.

While similar monuments may or may not exist in

other geographic locations, each would be in its own

different and unique context, so that the decision in the

instant case does not control or provide precedent for the

constitutionality of any other monument or display. Con-

trary to the petitioners’ assertion that the instant case will be

used by many state and local jurisdictions "as [a] basis for

unwarranted intrusions on the United States Constitution"

(Pet. at 8), no identical or even similar factual situation is

" In the course of this litigation petitioners have repeatedly

argued for a “rule of independent review" that would allow the

trial court’s factual findings to be disregarded, citing in particular

(and taking out of context) a statement from Justice O’Connor’s

concurrence in Lynch. The issue was extensively briefed by the

parties; the Colorado Supreme Court was unpersuaded by the

petitioners’ arguments and instead utilized customary standards of

appellate review.

28

likely to arise. The factual and legal questions presented to

and decided by the Colorado Supreme Court and their im-

portance as precedent are not of the kind that has any effect

beyond the four comers of the subject decision. This Court

should eschew granting certiorari in such circumstances.

CONCLUSION

The decision of the Colorado Supreme Court in this

case does not conflict with the settled law of this Court. The

Colorado Supreme Court applied the controliing case law of

this Court in a proper and unremarkable fashion. Accord-

ingly, the Petition for Writ of Certiorari should be denied.

GALE A. NORTON*

Attorney General of Colorado

STEPHEN K. ERKENBRACK

Chief Deputy Attorney General

TIMOTHY M. TYMKOVICH

Solicitor General

PAUL FARLEY

Deputy Attorney General

MAURICE G. KNAIZER

Deputy Attorney General

DIANNE E. ERET

Assistant Attorney General

Attorneys for Respondents

Colorado Department of Law

1525 Sherman Street, Sth Floor

Denver, Colorado 80203

Telephone: (303) 866-5228

*Counsel of Record

29