# Opposition Brief — Russ v. Adland

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 999

## Text

—— 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1188%3A2. Public record. Not legal advice.