Opposition Brief — Russ v. Adland

—— a

Supreme Court, U.S.

FIL?#E®

No. 02-1241 MAR 27 2003

OFFICE OF THE CL px

In The

Supreme Court of the Anited States

¢

ARMOND RUSS, in his official capacity

as the Commissioner of the Kentucky

Department for Facilities Management,

Petitioner,

¥.

Rabbi JONATHAN ADLAND, et al.,

Respondents.

r

v

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

%

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

¢

DAVID A. FRIEDMAN

General Counsel

AMERICAN CIVIL LIBERTIES

UNION OF KENTUCKY

425 W. Muhammad Ali Blvd.

Louisville, KY 40202

(502) 581-1181

Counsel of Record for Respondents

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Did the Court of Appeals err in affirming a permanent

injunction preventing Kentucky officials from erecting on

the State Capitol grounds a six-foot by four-foot monument

dominated by the text of one version of the Ten Com-

mandments?

ii

TABLE OF CONTENTS

Page

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

Se CO GO inser neness ii

TABLE OF AUTHORITIES ...0....sssssssssssssssessssessseeeees iv

SSTATIGMEIOIN © CRE aie GIs: cvevecscenceesssesenevsanssesnens 1

REASONS FOR DENYING THE WRIT.............. cds 4

APEPUSEEIES inniuioiesiantmamenaiaamn ana 5

I. There is No Significant Conflict In The

Federal Appeals Courts ...............ccccseceeeeeeeeees 5

II. The Sixth Circuit Correctly Applied This

Court’s Cases To Hold That SJR 57 Lacks A

Valid Secular Purpose And Has The Imper-

missible Effect Of Endorsing Religion ........... 7

A. Kentucky Seeks Plenary Review Merely

To Challenge The Sixth Circuit’s Appli-

cation Of Established Law To Particular

FRB .vccierscissteinaeaaeen 7

B. The Sixth Circuit Correctly Found That

SJR 57 Lacked A Valid Secular Purpose

And That The Ten Commandments Monu-

1. The Sixth Circuit Properly Found

That The Resolution Lacked A Valid

SOCUIRE PUL visiciiscisevcncpaenan 9

TABLE OF CONTENTS - Continued

Page

2. The Sixth Circuit Properly Found

That, By Mandating Erection Of The

Ten Commandments Monument Near

The Floral Clock, SJR 57’s Primary

Effect Was To Endorse Religion.......... 14

ET cessuicinnnechvohvaieviadsnésteesissinisiiensinedaveenhes 23

iv

TABLE OF AUTHORITIES |

Page |

CASES

Abbott Laboratories v. Gardner, 387 U.S. 136 |

EG Irare Piisioisnasikesslpsiaianhnantiatanieinaaleniesiaainidieniantanamssiaennasieia 22

Abington Township Sch. Dist. v. Schempp, 374 U.S.

I seni sisinicisnsccnasieioeiseinteaiabiedeianiaeetii dat cca acihieialh 10

ACLU of Kentucky v. McCreary County, 96 F.Supp.2d

Fe Se ls I viichinssncdaketiccasnmntincstudsebiniaenieniaeniabsa 13 |

ACLU of Kentucky v. Pulaski County, 96 F.Supp.2d |

Be Se ee Se aces Zhncemensiccolascatedunsaieinteaanaaaiion 13 |

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

Ba AGE caivnninscaisaisabssnechenitcch MRsaaprbddcandabaeactammadaasehimnsaiainaubaiushias 7 |

Books v. City of Elkhart, Indiana, 235 F.3d 292 (7th |

Cir. 2000), cert. denied, 532 U.S. 1058 (2002)......... 4,6,7

Church of the Holy Trinity v. United States, 143

SF NE Ce i ccntunintneiaiiinionschnaalcaiitaduibaahaiasiidiglettindins 12 |

County of Allegheny v. American Civil Liberties |

Union, 492 U.S. 573 (1989)........s:sccceseseees 8, 14, 18, 19, 23 |

Doe v. Musselman, 96 F.Supp.2d 667 (E.D. Ky.

— BOQD)....csserssosorversvesvevnesesesennascesssenseasosesedasesecovarsvenssnenessoees 13

Edwards v. Aguillard, 482 U.S. 578 (1987)........scecee 8,9

Indiana Civil Liberties Union v. O’Bannon, 259

F.3d 766 (7th Cir. 2001), cert. denied, 534 U.S.

Be CN itd disankersnchicneindisntnontneiiniiianapvbenantetenmnsdines 4,6,7

Lemon v. Kurtzman, 403 U.S. 602 (1971).............. 4, 7, 8, 14

Lynch v. Donnelly, 465 U.S. 668 (1984)............... 8,9, 10, 15

Mitchell v. Helms, 530 U.S. 793 (2000) .......... cece eee eeeeeees 8

'

'

b

4

‘

|

i

_

TABLE OF AUTHORITIES - Continued

Page

Pacific Gas & Elec. Co. v. State Energy Resources

Conservation & Dev. Comm’n, 461 U.S. 190

( Fie cssnsscinnnesisintubdcesinvseniephninetcaiasaiieaionianmanmeaasaaiamamnnenas 22

Sante Fe Independent School District v. Doe, 530

Fe ee Gs ccisucssshdteancesenessauseneumdiosniaoumads 8, 10, 18, 14

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

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

PIT Piccscsuscisnctnsnticespicastdasesenieeenandaaaae 7

Wallace v. Jaffree, 472 U.S. 38 (1985) .........ccceeeeeeeeeees 9,10

STATUTES AND RULES

OE Be Gee Fe Gi ncitenectidverntinndntecassvesseausaniaedenninn ts 3

Ky. Rev. Stat. § 158.178(2) (1980).............cccccsrsssvers 6, 10, 11

OTHER AUTHORITIES

1 The Civil Law 57-77 (S.P. Scot trans.) (1932) ................ 17

AE Fake CW Ee Fe i iii ccrscisiitiaecsinnsssninceicaeine 17

A.F.P. Hails, Remnants Of Ch’in Law 120-31, 138-

BD, TAGE, SE Ca cstckrntshiccnivecdnsnstisciansarccmpamcnsaee

Albert Kocourek & John H. Wigmore, Source Of

Ancient And Primitive Law 469-99 (1915).................... 17

Bernard J. Mislin, Jewish Law In American Tribu-

ee 9, BEE Ce Pee iccenssinnindinsiisiectnsaiiamnecaaiamamans 18

Ilias Arnaoutoglou, Ancient Greek Laws: A Sourcebook

BB-BB,, TOTS CGD) vnciassnsnvrcnsssiinientsnsmnnresianpniemantenniavsion 17

vi

TABLE OF AUTHORITIES — Continued

Isaac Kramnick And R. Laurence Moore, The

Godless Constitution — The Case Against Reli-

gious Correctness 27-28 (1996)..............:sssseeeseeeeeees

The Hammurabi Code (trans. Chilperic Edwards)

CRGBED, Bi: BB in ccccsicrscscreiesssvacsiessiaanaianae

The Hittite Laws (E. Neufeld trans.) (1951)...............

Lawrence Friedman, A History Of American Law

LB (1GTS)...secrrrcesrersepbennneecvaveesosesnsssensentussssundedasnescesees

Max Radin, Handbook Of Anglo-American —

ERMC Y 1-5 CIGSGS) .....cccseicrsvscorcnsesossorccsssnnonevenseseeastesss

Steven Lubet, The Ten Commandments in Ala-

bama, Constitutional Commentary, pp. 471, 475

CUP RRGE BITE oxccnisccncscnscsescescteseiseibecienmnemensnaenes

Thomas Hobbes, Leviathan 107 (Herbert W.

Schneider ed., Bobbs Merrill 1958) ...................000.

STATEMENT OF THE CASE

The State Capitol, located in Frankfort, is the seat of

the Commonwealth of Kentucky’s governmental power. It

contains the State Senate, House of Representatives,

Supreme Court and Governor’s office. [Petitioner Appen-

dix (Pet. App.) 25.) The focal point of the surrounding

State Capitol grounds is the floral clock, “a prominent and

central feature” that “attracts attention.” [Pet. App. 45.]

The floral clock “is thirty-four feet in diameter and weighs

over 200,000 pounds.” [Pet. App. 45.]

In 2000, the General Assembly enacted, and Governor

Paul Patton signed, Senate Joint Resolution (SJR) 57,

which compelled the placement of a Ten Commandments

monument next to the floral clock. [See Pet. App. 2, 57-65. ]

The Ten Commandments monument “is a _ stone

marker that is over six feet tall and almost four feet

wide.” [Pet. App. 44.] The Fraternal Order of Eagles gave

it to the Commonwealth in 1971 and the Commonwealth

displayed it until about 1980, when it removed the monu-

ment to make room for construction. [Pet. App. 3, 5.] The

monument has remained in storage since then. [Pet. App.

5.)

* In addition to one version of the text of the Ten Commandments,

the monument’s border “is inscribed with the Star of David, the Chi

Rho, the ‘all-seeing eye’ inside a pyramid, an eagle, and a flag.” [Pet.

App. 5.]

* SJR 57 thus is wrong when it says that the monument “was

displayed on the Capitol grounds for nearly three decades. ... ” [Pet.

App. 5; see Pet. App. 65.]

SJR 57 recites its legislative purposes in seventeen

“Whereas” clauses. [Pet. App. 57-63.] Two clauses effec-

tively “conclude that the Supreme Court has declared the

United States to be a ‘Christian nation.’” Ten other

clauses “quote famous Americans professing their beliefs

in the Bible, God, or Christianity.” Four others “incorpo-

rate miscellaneous quotations regarding God or the Bible

in pre-Revolutionary legislative sources or in Kentucky

law.” The final clause “implies that the text of the Ten

Commandments appears in the U.S. Supreme Court

chambers as part of a frieze which contains several depic-

tions of historical law givers.” [Pet. App. 44.]

SJR 57 requires that the monument be placed on the

Capitol grounds near the floral clock. [Pet. App. 2.] The

district court — whose chambers are within a mile of that

site — summarized the significance of the location as

follows:

The floral clock area is a prominent and central

feature on the Capitol grounds. The floral clock

can be seen from the circular drive that leads up

to the Capitol plaza and the public parking area.

In fact, this position is such a focal point for the

area that the State has chosen this location for a

bronze plaque, which welcomes visitors to the

State Capitol. ...

In addition to the centralized location, the

floral clock located in this area attracts atten-

tion. The clock is thirty-four feet in diameter and

weighs over 200,000 pounds. It is surrounded by

seven other smaller memorials that emphasize

the State’s pride in the citizens, veterans, and

public servants to whom said memorials are

dedicated. If the “Ten Commandments Monu-

ment” were to be relocated to this area of the

3

Capitol grounds, it would be the largest monu-

ment in the area, except for the floral clock. Both

the floral clock and the “Ten Commandments

Monument” would be visible to motorists driving

on the road between the Capitol and the Capitol

Annex.

[Pet. App. 45.]°

In July 2000, the American Civil Liberties Union and

five individuals, including a rabbi and three ministers,

filed suit in the United States District Court for the

Eastern District of Kentucky. They alleged that SJR 57,

which compelled the placement of the Ten Command-

ments monument at a central location on the Capitol

grounds, violated the First Amendment’s establishment

clause. The district court consolidated its hearing on the

preliminary injunction motion with trial on the merits

pursuant to Fed. R. Civ. P. 65(a)(2). On July 27, 2000, the

district court issued its memorandum opinion, order and

judgment declaring SJR 57 unconstitutional and perma-

nently enjoining Armond Russ, Commissioner of the

Department for Facilities Management, from erecting the

Ten Commandments monument. [Pet. App. 43-54.]

A divided panel of the Sixth Circuit affirmed. [Pet.

App. 1-42.] The majority found that the articulated pur-

poses for SJR 57 were not secular, did not justify placing

the Ten Commandments — a sacred and religious text for

* By contrast, the other memorial plaques are placed parallel to

ground level or on a small pedestal. They are tiny compared to the Ten

Commandments monument: “(T]he sheer dimensions of this granite

monolith would dwarf all the other memorials to deceased veterans and

dedicated public servants in the vicinity.” [Pet. App. 51.]

4

Jews and Christians — at the focal point of the State

Capitol grounds, and thus violated the first prong of

Lemon v. Kurtzman, 403 U.S. 602 (1971). [Pet. App. 13-

21.] The majority also held that placement of the Ten

Commandments monument would violate the endorse-

ment test under Lemon’s second prong, because a reason-

able observer would deem the monument, in context, as an

endorsement of religion. [Pet. App. 22-33.] Judge

Batchelder dissented on ripeness grounds. [Pet. App. 35-

42.]

REASONS FOR DENYING THE WRIT |

Review is inappropriate for three reasons. First there |

is no conflict among the circuits. The Sixth Circuit’s |

opinion is consistent with two decisions from the Seventh |

Circuit, Indiana Civil Liberties Union v. O’Bannon, 259 |

F.3d 766 (7th Cir. 2001), cert. denied, 534 U.S. 1162

(2002), and Books v. City of Elkhart, Indiana, 235 F.3d 292

(7th Cir. 2000), cert. denied, 532 U.S. 1058 (2002). No

federal court of appeals has issued a conflicting decision |

since this Court denied review from the two Seventh

Circuit cases. The petitioner does not argue otherwise.

Second, the Sixth Circuit correctly applied settled

establishment clause law in finding that the legislature’s

articulated purposes for enacting SJR 57 are not secular

and that the effect of placing a six-foot by four-foot Ten

Commandments monument at the focal point of the State

Capitol grounds is to impermissibly endorse religion. The

petitioner merely seeks to correct what he perceives to be

an incorrect application of well-settled principles of law. |

Third, the petitioner’s claim that this case was not ripe

for decision ignores the factual record (and petitioner’s own

5

argument) in the courts below. That record detailed the

precise content and physical context of the Ten Com-

mandments display, which petitioner argued was constitu-

tional. Again, the petitioner merely seeks to correct what

he perceives to be a premature application of well-settled

principles of law.

ARGUMENT

I. There Is No Significant Conflict In The Fed-

eral Appeals Courts.

This Court has considered the constitutionality of

government Ten Commandments displays only once. In

Stone v. Graham, 449 U.S. 39 (1980), the Court summarily

struck down a Kentucky statute requiring each public

school to post the Ten Commandments on classroom walls.

Although each display was to include a disclaimer that

“(t]he secular application of the Ten Commandments is

clearly seen in its adoption as the fundamental legal code

of Western Civilization and the Common Law of the

United States,” id. at 41, the Court held that the statute

lacked a secular legislative purpose because:

The pre-eminent purpose for posting the Ten

Commandments on schoolroom walls is plainly

religious in nature. The Ten Commandments are

undeniably a-sacred text in the Jewish and

Christian faiths. The Commandments do not con-

fine themselves to arguably secular matters... .

Rather, the first part of the Commandments con-

cerns the religious duties of believers: worship-

ping the Lord God alone, avoiding idolatry, not

using the Lord’s name in vain, and observing the

Sabbath Day.

Id., 449 U.S. at 41-42 (footnote and citations omitted); see

id., 449 U.S. at 42 (referring to the Ten Commandments as

a “religious text[ ]”).

The courts of appeals have consistently shared and

applied this understanding of Stone. Here, the Sixth

Circuit deemed Kentucky’s articulated “secular purpose”

but a variation on the Stone theme. Because Kentucky’s

purpose, as reflected in SJR 57’s text, is conceptually

identical to Ky. Rev. Stat. § 158.178(2)’s purpose, Stone

conclusively established that the asserted secular purpose

“cannot blind” the courts to the obvious sacred nature of

the legislative command. “The pre-eminent purpose for

posting the Ten Commandments ... is plainly religious in

nature.” Stone, 449 U.S. at 41.

In Indiana Civil Liberties Union v. O’Bannon, 259

F.3d 766 (7th Cir. 2001), cert. denied, 534 U.S. 1162

(2002), the Seventh Circuit applied Stone to find that

Indiana lacked a valid secular purpose for maintaining a

Ten Commandments monument at the Indiana State-

house. See id., 259 F.3d at 770-71 (“the Ten Command-

ments is a religious and sacred text that transcends

secular ethical or moral concerns”). And in Books v. City of

Elkhart, Ind., 235 F.3d 292 (7th Cir.), cert. denied, 532

U.S. 1058 (2002), the Seventh Circuit applied Stone to

enjoin a citys similar Ten Commandments display. ZId.,

235 F.3d at 302 (the Ten Commandments cannot “be

stripped of their religious, indeed sacred, significance and

characterized as a moral or ethical document”).

Ren ge

No court of appeals case since Stone has conflicted

with the Sixth and Seventh Circuits’ application of that

decision.‘ No other circuit has issued a Ten Command-

ments decision since this Court denied review in O’Bannon

and Books. And the petitioner does not argue that any

conflict in application warrants this Court’s review.

II. The Sixth Circuit Correctly Applied This

Court’s Cases To Hold That SJR 57 Lacks A

Valid Secular Purpose And Has The Imper-

missible Effect Of Endorsing Religion.

A. Kentucky Seeks Plenary Review Merely

To Challenge The Sixth Circuit’s Applica-

tion Of Established Law To Particular

Facts.

A Ten Commandments displays constitutionality

under the establishment clause must be gauged by the

Lemon test. Lemon v. Kurtzman, 403 U.S. 602, 612-13

(1971). To survive scrutiny under Lemon, publicly dis-

played religious text must have a valid secular purpose

and must not foster nor discourage religion or religious

* Seven years before Stone, the Tenth Circuit held that the Ten

Commandments are not primarily religious in nature. See Anderson v.

Salt Lake City, 475 F.2d 29, 34 (10th Cir. 1973). That court has since

questioned Anderson’s continued vitality. See Summum uv. Callaghan,

130 F.3d 906, 910 n.2 (10th Cir. 1997) (“Since Anderson was decided,

however, more recent cases, including a Supreme Court case, cast doubt

on the validity of our conclusion that the Ten Commandments monolith

is primarily secular in nature”); id., 130 F.3d at 912 n.8 (“our decision

in Anderson has been called into question by the Supreme Court in

Stone”) (citations omitted).

8

beliefs.” Id. Governmental action “violates the Establish-

ment Clause if it fails to satisfy any of these prongs.”

Edwards v. Aguillard, 482 U.S. 578, 583 (1987).

In County of Allegheny v. American Civil Liberties

Union, 492 U.S. 573 (1989), a majority of this Court

adopted the endorsement analysis contained in Justice

O’Connor’s Lynch concurrence. That analysis modified

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

government’s actual purpose, the practice under review in

fact conveys a message of endorsement or disapproval.”

Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (Justice

O’Connor, concurring); County of Allegheny, 492 U.S. at

562. See also Sante Fe Independent School District v. Doe,

530 U.S. 290, 307 (2000) (focusing on “[t]he actual or

perceived endorsement of the message”). In determining

whether an endorsement exists, courts must focus on the

precise factual context because, for example, “a typical

museum setting, though not neutralizing the religious

content of a religious painting, negates any message of

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

(Justice O’Connor, concurring). “Every government prac-

tice must be judged in its unique circumstances to deter-

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

465 U.S. at 694 (Justice O’Connor, concurring). Thus,

* Lemon contains a third prong, asking whether the challenged

display fosters excessive entanglement. In Mitchell v. Helms, 530 U.S.

793, 807-08 (2000) (plurality opinion), the plurality noted that to some

extent Lemon’s “excessive entanglement” prong had been absorbed into

the “primary effect” prong. This refining of Lemon is not relevant here

because the respondents have never claimed that the challenged Ten

Commandments monument creates an “excessive entanglement.”

9

whenever courts determine whether a specific governmen-

tal practice, in context, violates the establishment clause,

“the inquiry calls for line-drawing; no fixed, per se rule can

be framed.” Lynch, 465 U.S. at 678.

The Sixth Circuit properly recognized that these

principles governed the establishment clause analysis by

which SJR 57 must be gauged. [Pet. App. 11-13.] Kentucky

objects merely because, in its estimation, the Court of

Appeals applied this settled law wrongly or too soon.

Given the express purposes of the resolution, and given

that the Ten Commandments monument would be the

only element added to an already-existing -context, the

Sixth Circuit’s application of settled law to unique facts is

not grounds for plenary review. And, in any event, the

Court of Appeals applied the law correctly.

B. The Sixth Circuit Correctly Found That SJR

57 Lacked A Valid Secular Purpose And That

The Ten Commandments Monument, In Con-

text, Endorsed Religious Belief.

1. The Sixth Circuit Properly Found That

The Resolution Lacked A Valid -Secu-

lar Purpose.

Where “a governmental intention to promote religion

is clear,” Edwards v. Aguillard, 482 U.S. 578, 585 (1987),

this Court has not hesitated to hold the challenged con-

duct unconstitutional. Thus, the Court has invalidated

Louisiana’s creationism statute, Aguillard; struck down a

Kentucky law requiring the posting of the Ten Com-

mandments in public schools, Stone; struck down Ala-

bama’s moment of silence statute, Wallace v. Jaffree, 472

U.S. 38 (1985); and held unconstitutional the mandated

daily reading of Bible verses and the Lord’s Prayer in

10

public schools. Abington Township Sch. Dist. v. Schempp,

374 U.S. 203 (1963). Significantly, in each of those cases,

this Court held that the challenged conduct was motivated

by a religious purpose, and disregarded the government’s

assertion of a sincere nonreligious purpose.

Nor is the requirement of a secular purpose “satisfied

... by the mere existence of some secular purpose, how-

ever dominated by religious purposes.” Lynch, 465 U.S._at

691 (Justice O’Connor, concurring). While a government’s

professed secular purpose for an arguably religious policy

is entitled to “some deference,” it is “the duty of the courts

to ‘distinguis[h] a sham secular purpose from a sincere

one.’” Santa Fe Indep. Sch. Dist., 530 U.S. 290, 308 (2000)

(quoting Wallace, 472 U.S. at 75) (brackets supplied in

Santa Fe Indep. Sch. Dist.).

The appeals court correctly concluded that the resolu-

tion’s stated purpose is not secular. At its core, SJR 57

demands that the Ten Commandments monument be

erected “to remind Kentuckians of the Biblical foundations

of the laws of the Commonwealth.” [Pet. App. 65.] But that

purpose is not secular, for this Court rejected Kentucky’s

similar assertion twenty years ago.

In Stone, 449 U.S. 39, this Court summarily struck

down a Kentucky statute requiring schools to post copies

of the Ten Commandments. Kentucky’s statute required

that each Ten Commandments display include the follow-

ing disclaimer: “The secular application of the Ten Com-

mandments is clearly seen in its adoption as the

fundamental legal code of Western Civilization and the

Common Law of the United States.” Ky. Rev. Stat.

§ 158.178(2) (1980), quoted in Stone, 449 U.S. at 41. This

Court was unpersuaded: “The Ten Commandments are

11

undeniably a sacred text in the Jewish and Christian

faiths, and no legislative recitation of a supposed secular

purpose can blind us to that fact.” Stone, 449 U.S. at 41

(footnote omitted). SJR 57 is but a variation on that

theme.

Because SJR 57’s “Biblical foundations of the laws of

the Commonwealth” is conceptually identical to Ky. Rev.

Stat. § 158.178(2)’s “fundamental legal code of Western

Civilization and the Common Law,” Stone conclusively

establishes that the resolution’s asserted secular purpose

“cannot blind” this Court to the obvious sacred nature of

the legislative command. “The pre-eminent purpose for

posting the Ten Commandments . .. is plainly religious in

nature.” Stone, 449 U.S. at 41.

This articulated legislative purpose is no more secular

than that struck down in Stone; to the contrary, as the

district court noted, the legislature’s purpose of “re-

mind[ing] Kentuckians of the Biblical foundations of the

law of this Commonwealth” is not validly secular because

the “display is unaccompanied by any other historical

documents evidencing the myriad of influences that

shaped our current body of law.” [Pet. App. 48.]°

Moreover, the resolution’s preamble dispels any

notion of secular purpose. SJR 57 does eight things, one of

which — compulsory monument display — is at issue here.’

* Perhaps recognizing tlat Stone dooms any “secular purpose”

argument, the Commonwealth makes no effort to address this point.

Instead, the Commonwealth argues only that the case was not ripe for

decision.

" The resolution also “finds” the Ten Commandments to be “the

precedent legal code of the Commonwealth,” requires the resolution’s

(Continued on following page)

12

And it explains why it does those things — that is, it recites

legislative purpose — in the preamble, consisting of seven-

teen “Whereas” clauses. Two of the seventeen clauses

reciting legislative purpose involve Supreme Court deci-

sions. One criticizes modern establishment clause juris-

prudence, asserting that “the Framers never intended the

First Amendment to be so interpreted as to remove the

Bible from public school classrooms.” [Pet. App. 58 (citing

writings of Congressman Fisher Ames).] The other mis-

takenly implies that in 1892 this “Court, in a unanimous

decision which has never been overruled,” declared this to

be a “Christian nation.” [Pet. App. 60 (alluding to Church

of the Holy Trinity v. United States, 143 U.S. 457 (1892))].°

Ten others recite famous Americans’ veneration for the

Bible, God or Christianity.’ Four allude to the miscellane-

ous mention of God or the Bible in Kentucky law or pre-

Revolutionary legislative matters. The last recites the Ten

Commandments’ appearance in the Supreme Court.” As

the district court noted,

posting along with the monument, requires distribution of the resolu-

tion and other materials and permits the posting of the Ten Com-

mandments in classrooms and other public buildings. [Pet. App. 63-65.]

* Church of the Holy Trinity was not a First Amendment case, but

an immigration case. In the course of deciding a question of statutory

construction, this Court said in dictum that this is a Christian nation.

* SJR 57 cites statements or writings by Samuel Adams, George

Washington, Andrew Jackson, John Quincy Adams, Abigail Adams,

Woodrow Wilson, Jimmy Carter and George Bush.

* SJR 57 implies that the text of the Ten Commandments appears

in the courtroom, rather than that the frieze contains several depictions

of historical “law givers,” including one showing Moses carrying two

tablets.

13

the Resolution tends to create an exclusive dis-

play, rather than an “historical and cultural”

perspective of the history of our laws. The entire

preamble to the Resolution cites only Christian

sources of law. By including the Resolution in the

display, viewers will tend to leave with the im-

pression that the Commonwealth of Kentucky

endorses the opinion that Christianity is the cen-

tral foundation of our law. The Resolution extols

the virtues of the Christian beliefs promulgated

by the Bible. By including a copy of the Resolu-

tion along with the display of the monument, the

legislation’s religious intent is ... clearly evi-

dent....

[Pet. App. 48 n.1.]

Finally, courts “not only can, but must, include an

examination of the circumstances surrounding [the legis-

lative] enactment.” Santa Fe Indep. Sch. Dist., 530 U.S. at

318. Here, those circumstances reveal the innately sectar-

ian backdrop to SJR 57’s enactment. In 1999, local govern-

ments throughout Kentucky posted the Ten Commandments

in courthouses, schools and other public buildings. These

local governments invited legal challenges and three

received them amid wide publicity. See ACLU of Kentucky

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

(preliminarily enjoining Ten Commandments display in

county courthouse); ACLU of Kentucky v. Pulaski County,

96 F.Supp.2d 691 (E.D. Ky. 2000) (same); Doe v. Mussel-

man, 96 F.Supp.2d 667 (E.D. Ky. 2000) (preliminarily

enjoining Ten Commandments display in public schools).

While those cases were pending, the state legislature

convened. “Ten Commandments” legislation was high on

the legislative agenda, generating several bills and wide-

spread public debate and commentary. Ultimately, the

14

legislature enacted SJR 57, with its direct challenge to

modern establishment clause jurisprudence and candid

embrace of 100-year-old sectarian dictum. Under these

well-publicized circumstances, the Commonwealth “never-

theles[s] ask[ed the courts] to pretend that [it] d[id] not

recognize what every [Kentuckian] underst[ood] clearly —

that this [resolution was] about prayer.” Santa Fe Indep.

Sch. Dist., 530 U.S. at 318.

For each of these reasons, then, SJR 57 lacks a valid

secuiar purpose. The resolution’s articulated purpose is

plainly religious. The Commonwealth’s “precedent legal

code” assertion has already been rejected by this Court as

religious. And the context in which SJR 57 was enacted

only highlights the legislature’s religious purposes. SJR 57

therefore violates Lemon’s purpose prong and the Sixth

Circuit was correct in so holding.

2. The Sixth Circuit Properly Found

That, By Mandating Erection Of The

Ten Commandments Monument Near

The Floral Clock, SJR 57’s Primary Ef-

fect Was To Endorse Religion.

Lemon also requires that a publicly displayed reli-

gious symbol have a primary effect that neither fosters nor

discourages religion. Lemon, 403 U.S. at 612-13. This

second or “endorsement” prong requires scrutiny of the

display’s environment or context, for the establishment

clause “preclude[s] government from conveying or at-

tempting to convey a message that religion or a particular

religious belief is favored or preferred.” County of Alle-

gheny, 492 U.S. at 593. Endorsement of religion is impermis-

sible because it gives a “message to nonadherents that they

are outsiders, not full members of the political community,

15

and an accompanying message to adherents that they are

insiders, favored members of the political community.”

Lynch, 465 U.S. at 688 (Justice O’Connor, concurring).

At issue here, then, is whether SJR 57’s compelled

display of the Ten Commandments similarly and imper-

missibly endorses religion. For the following reasons, the

Sixth Circuit correctly found that it does.

To begin with, the Ten Commandments are of a

completely different ilk than memorial plaques, a floral

clock, or a “Welcome to Kentucky” sign. They do not

commemorate important Kentuckians. They do not cele-

brate Kentucky’s political heritage." The Commandments

" To be sure, Kentucky’s historical and political leaders, like the

nation’s Framers, undoubtedly read and knew of the Ten Command-

ments. But, as historians have noted, those who created the Constitu-

tion and Bill of Rights studiously avoided any religious references:

God and Christianity are nowhere to be found in the Ameri-

can Constitution, a reality that infuriated many at the time.

The U.S. Constitution, drafted in 1787 and ratified in 1788,

is a godless document. Its utter neglect of religion was no

oversight; it was apparent to all. Self-consciously designed

to be an instrument with which to structure the secular

politics of individual interest and happiness, the Constitu-

tion was bitterly attacked for its failure to mention God or

Christianity. Our history books usually describe in great de-

tail the major arguments made against the federal Consti-

tution by its Anti-Federalist opponents; it meant death to

the states and introduced an elitist Senate and a monarchi-

cal presidency. They seldom mention, however, the con-

certed campaign to discredit the Constitution as irreligious,

which for many of it opponents was its principal flaw... .

(TJhis underremembered controversy of 1787-88 over the

godless Constitution was one of the most important public

debates ever held in America over the place of religion in

(Continued on following page)

16

derive from the Old Testament, Exodus 20:2-17 and

Deuteronomy 5:6-21. Jewish tradition teaches that the

Ten Commandments were given by God to Moses on Mt.

Sinai (about 3200 years ago). For this reason, many

Christians and Jews deem the Ten Commandments

sacred.” Although the Ten Commandments can be divided

into groupings that concern God and those that do not,

believers see the Ten Commandments as a unitary docu-

ment, given to humans by their deity, and held together by

their initial pronouncement that “I am the Lord thy God.”

The Ten Commandments undoubtedly represent an

important code of human conduct and behavior, but they

are hardly unique. The Code of Hammurabi, the earliest

compilation of Babylonian law (circa 2200 B.C.E.), pre-

dated Mosaic law by 1000 years. THE HAMMURABI

CODE (trans. Chilperic Edwards) (1904), p. 120. Indeed,

the Ten Commandments were derived from the Code of

Hammurabi and two dozen passages in Exodus are sub-

stantially identical to sections in the Code of Hammurabi.

Id. at 123-30. Like the Ten Commandments, the Code of

Hammurabi prohibited killing, adultery, stealing, and

politics. The advocates of a secular state won, and it is their

Constitution we revere today.

Isaac Kramnick And R. Laurence Moore, The Godless Constitution —

The Case Against Religious Correctness 27-28 (1996).

“ There are at least three versions of the Ten Commandments in

use by Jews, Catholics and Protestants. Among other differences, the

Jewish version prohibits “murder” as opposed to “killing.” The Protes-

tant version bans the making of graven images, a provision absent from

the Catholic version. See generally, Steven Lubet, The Ten Command-

ments in Alabama, Constitutional Commentary, pp. 471, 475 (Winter

1988).

17

bearing false witness. Jd. at 3, 6, 8, 21-22, 129, 153, 206-

07, 209-10, 259-60.

Other ancient codes similarly prohibited such things

as murder, theft, adultery and perjury. See The Hittite

Laws (E. Neufeld trans.) (1951) [Cuneiform fragments of

Hittite laws written circa 1370 B.C.E. prohibit homicide,

theft and adultery]; Albert Kocourek & John H. Wigmore,

Source Of Ancient And Primitive Law 469-99 (1915) [the

Laws of Manu (Hindu), created circa 1100 B.C.E., prohib-

ited murder, adultery, theft and perjury]; Ilias Arnaou-

toglou, Ancient Greek Laws: A Sourcebook 22-23, 70-73

(1998) [Athenian law of the 6th Century B.C.E. prohibited

adultery, theft, murder and other forms of homicide]; 1

The Civil Law 57-77 (S.P. Scot trans.) (1932), 11 The Civil

Law 29-46 [Roman law prohibited murder, theft, perjury

and adultery); A.F.P. Hails, Remnants Of Ch’in Law 120-

131, 138-40, 146-49, 168-69 (1985) [Ch’in Dynasty, circa

7th Century B.C.E., prohibited theft, falsely denouncing

someone as a criminal, killing without authorization and

adultery]. Nor is it surprising that many moral codes,

including those predating the Ten Commandments,

contain similar secular rules, for without basic prohibi-

tions on murder and stealing life would be “nasty, brutish,

and short.” Thomas Hobbes, Leviathan 107 (Herbert W.

Schneider, ed., Bobbs Merrill 1958) (originally published

in 1651)."

" Nor can the Ten Commandments be described as a unique

foundational document for American law in general. American law is

based on English law, which derives from Roman, Anglo-Saxon, and

Norman law, which in large part ignored Mosaic law as applying only to

Jews. See Lawrence Friedman, A History Of American Law 15 (1973);

(Continued on following page)

18

Because the Ten Commandments are a recognized

code of human conduct, the Commonwealth might elect to

include them in an appropriate educational display on

moral codes. See Stone, 449 U.S. at 42 (noting, in striking

down required posting of Ten Commandments in Ken-

tucky schools, that “[t]his is not a case in which the Ten

Commandments are integrated into the school curriculum,

where the Bible may constitutionally be used in an appro-

priate study of history, civilization, ethics, comparative

religion, or the like.... ”) In such ¢ display of various

behavioral codes throughout history, a reasonable ob-

server likely would not deduce that the government

endorsed the Ten Commandments over other moral codes.

Indeed, Justice Stevens, concurring in Allegheny, noted as

much:

For example, a carving of Moses holding the Ten

Commandments, if that is the only adornment on

a courtroom wall, conveys an equivocal message,

perhaps of respect for Judaism, for religion in

general, or for law. The addition of carvings de-

picting Confucius and Mohammed may honor re-

ligion, or particular religions, to an extent that

the First Amendment does not tolerate any more

than it does “the permanent erection of a large

Latin cross on the roof of city hall.” ... Place-

ment of secular figures such as Caesar Augustus,

William Blackstone, Napoleon Bonaparte, and

John Marshall alongside these three religious

leaders, however, signals respect not for great

Bernard J. Mislin, Jewish Law In American Tribunals 1, 25-28 (1976);

Max Radin, Handbook Of Anglo-American Legal History 1-5 (1936).

Oe

19

proselytizers but for great lawgivers. It would be

absurd to exclude such a fitting message from a

courtroom, as it would be to exclude religious

paintings by Italian Renaissance masters from a

public museum.

Allegheny, 492 U.S. at 652-53 (Stevens, J., concurring)

(footnote and internal citations omitted).

SJR 57’s Ten Commandments display is not a display

_ of “lawgivers.” Nor does it purport to represent a sampling

of great moral codes. The Ten Commandments monument

would contain the only religious text and the only moral

code displayed on the capitol grounds. Nor would the

display expose Kentuckians to the teachings of the world’s

great cultures and religions, for only one version of the

Ten Commandments is displayed. The Ten Commandments

are religious, first and foremost. They are sacred to those

who worship them as the word of God. And displaying the

Ten Commandments within proximity of memorial

plaques does not make the Ten Commandments like them.

Nor is the monument’s inherent religious nature

diminished by its physical context. The presence of the

Star of David, a flag, an eagle and the “all-seeing” eye do

not neutralize the religious effect of the Ten Command-

ments monument. As for the Star of David, simultaneous

endorsement of two religions “is no less constitutionally

infirm than the endorsement of Christianity alone.”

Allegheny, 492 U.S. at 615. The flag, eagle and “all-seeing”

eye are small in comparison to the Commandments’ text.

In addition, the three figures are incorporated into the

monument’s decorative border obscuring them further.

The reasonable person viewing the Ten Commandments

monument does not see a collection of texts and figures,

but a six-foot by four-foot stone tablet, erected on the

Dh ee aR OUR ab BC

20

Capital grounds, proclaiming “I AM the LORD thy God.”

(Emphasis in original.) The effect of such a display is

clearly religious.“

The proposed location of the Ten Commandments

monument ensures that the effect of the display will be to

endorse religion. The monument is to be placed in what

the Commonwealth characterized below as a “monument

garden” near Kentucky’s floral clock. But the Ten Com-

mandments monument would dwarf all other flowers in

the garden. [Pet. App. 51.] The monument is four feet

across and more than six feet high. The seven “historical”

markers in the floral clock area are relatively small, flat

bronze rectangles set in the ground or on small pedestals.

Only the floral clock even remotely approaches the Ten

Commandments monument’s size. Thus, the Ten Com-

mandments monument, with its dominant size and impos-

ing text, will be the focal point of the display, as the

district court expressly found:

[T]he prominent placement of the monument

would further support the reasonable person’s

conclusion that the Commonwealth endorsed

Christian values. This high traffic area is located

near a famous Kentucky landmark. ... It is with

‘ SJR 57 also requires that the resolution’s text be displayed along

with the monument. [Pet. App. 65.] But rather than distancing the

Commonwealth from the blatantly religious message of the Ten

Commandments, the resolution reinforces the overwhelmingly Chris-

tian theme of the display. The resolution proclaims Biblical scripture as

the cornerstone of American jurisprudence, quotes American political

leaders praising the Bible and generally lauds the role of religion in

American life. The resolution thus highlights the impression that the

Commonwealth “endorses Christian influences to the exclusion of those

from other religious and secular sources.” [Pet. App. 48.]

eS a a a ae

21

great pride that the Commonwealth displays this

clock on Capitol grounds, in the direct proximity

of the bronze plaque that welcomes visitors to

the State Capitol. The monument’s placement

would indicate that the Commonwealth approved

of the display and the full panoply of its religious

content.

[T]he size of this monument further indi-

cates the importance placed on the Biblical mes-

Sage contained in this display. While the floral

clock is clearly larger and probably more eye

c»tching than the monument in question, the

monument would not be viewed as simply an-

other object in a “monument garden.” The facts

clearly indicate that the sheer dimensions of this

granite monolith would dwarf all the other me-

morials to deceased veterans and dedicated pub-

lic servants in the vicinity.

[Pet. App. 50-51.] The sum effect of this display is an

unconstitutional endorsement of religion.

Nor does SJR 57 place the Ten Commandments far

from the seat of power. Indeed, rather than incorporating

the monument into a pre-existing monument garden

elsewhere in the Commonwealth, the General Assembly

deliberately chose to place the Ten Commandments within

100 yards of the seat of all three branches of Kentucky

state government. The proximity of the Caritol to

the proposed monument leaves little doubt that the

22

Commonwealth endorses, approves and condones a display

of purely religious text on its property.”

The American historical experience recognizes many

religious faiths and personal philosophies. By contrast,

SJR 57’s mandated display of the Ten Commandments

endorses one religious belief system. This contravenes

what this Court has noted is our real heritage:

This nation is heir to a history and tradition

of religious diversity that dates from the settle-

ment of the North American Continent... .

Precisely because of the religious diversity

that is our national heritage, the Founders added

to the Constitution a Bill of Rights, the very first

words of which declare: “Congress shall make no

law respecting an establishment of religion,

or prohibiting the free exercise thereof.... ”

** The Commonwealth now appears to have abandoned all efforts

to argue that the Ten Commandments display would not endorse

religion. Instead, picking up on a suggestion made for the first time by

the dissenting judge below during rebuttal argument, the Common-

wealth suggests that the case is not ripe because one must speculate

about the other components of the Ten Commandments display. But

this ignores the record below and the Commonwealth’s consistent

position before the district and circuit courts. The record reflects that

SJR 57 mandated adding the Ten Commandments monument (and the

Resolution’s text) to an already-existing “monument garden” — to wit,

the existing State Capitol grounds. Thus, the courts below had no need

to speculate about context; the record described in detail the existing

grounds and the precise physical location of the Ten Commandments

display. The context thus was fully described in the record and the

issue was “fit{ ] ... for judicial decision.” Abbott Laboratories v.

Gardner, 387 U.S. 136, 149 (1967); see also Pacific Gas & Elec. Co. v.

State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 201

(1983).

23

Perhaps in the early days of the Republic these

words were understood to protect only the diversity

within Christianity, but today they are recognized

as guaranteeing religious liberty and equality to

“the infidel, the atheist, or the adherent of a non-

Christian faith such as Islam or Judaism.”

County of Allegheny, 492 U.S. 573, 590 (1989) (quoting

Wallace, 472 U.S. at 52). The legislature’s mandate that

Kentucky erect a Ten Commandments monument flies in

the face of this diversity and our national heritage. The

appeals court correctly found it to be unconstitutional.

¢

CONCLUSION

Certiorari is not warranted. The Court of Appeals’

analysis conformed to the context-based inquiry demanded

by this Court. There is no meaningful conflict with deci-

sions of another circuit court. And because the record

detailed the precise location and elements of the Com-

monwealth’s Ten Commandments display, the case was

ripe for decision. Because there are no grounds for grant-

ing plenary review, this Court should deny the petition for

a writ of certiorari.

Respectfully submitted,

DAVID A. FRIEDMAN

General Counsel

AMERICAN CIVIL LIBERTIES

UNION OF KENTUCKY

425 W. Muhammad Ali Blvd.,

Suite 230

Louisville, KY 40202

(502) 581-1181

Counsel of Record for Respondents