Amicus Curiae Brief — Russ v. Adland

Supreme Court, U.S.

FILED

(4) MAR gy 2005

No. 02-1241

In the

Supreme Court of the United States

ARMOND RUSS, IN HIS OFFICIAL CAPACITY AS THE

COMMISSIONER OF THE KENTUCKY DEPARTMENT FOR

FACILITIES MANAGEMENT,

Petitioner,

Vv.

RABBI JONATHAN ADLAND, ET AL.,

Respondents.

On Petition for Writ of Certiorari

United States Court of Appeals for the Sixth Circuit

BRIEF OF THE STATES OF TEXAS, ALABAMA, INDIANA,

MISSISSIPPI, OHIO, OKLAHOMA, PENNSYLVANIA,

SOUTH CAROLINA, SOUTH DAKOTA, AND UTAH

AS AMICI CURIAE IN SUPPORT OF PETITIONER

GREG ABBOTT R. TED CRUZ

Attorney General of Texas Solicitor General rs

ee Counsel of Record

First Assistant Attorney AMY WARR

General Assistant Solicitor General

DON R. WILLETT P.O. Box 12548

Deputy Attorney General Austin, Texas 78711-2548

for General Counsel (512) 936-1826

JEFFREY S. BOYD COUNSEL FOR AMICUS CURIAE

Deputy Attorney General THE STATE OF TEXAS

for Litigation

av

WILLIAM H. PRYOR, JR.

Attorney General of Alabama

Alabama State House

11 South Union St.

Montgomery, AL 36136

STEVE CARTER

Attorney General of Indiana

Indiana Govt. Center South

402 W. Washington St., 5th Fl.

Indianapolis, IN 46204

MIKE MOORE

Attorney General of

Mississippi

P.O. Box 220

Jackson, MS 39205

JIM PETRO

Attorney General of Ohio

30 E. Broad St., 17th FI.

Columbus, OH 43215

W.A. DREW EDMONDSON

Attorney General of Oklahoma

D. MICHAEL FISHER

Attorney General of

Pennsylvania

16th Floor, Strawberry Square

Harrisburg, PA 17120

HENRY MCMASTER

Attorney General of

South Carolina

P.O. Box 11549

Columbia, SC 29211 .

LAWRENCE E. LONG

Attorney General of

South Dakota

500 East.Capitol Ave.

Pierre, SD 57501-5070

MARK L. SHURTLEFF

Attorney General of Utah

236 State Capitol

Salt Lake City, UT 84114

2300 N. Lincoln Blvd., Ste. 112

Oklahoma City, OK 73105-4894

i

QUESTION PRESENTED

Whether the Establishment Clause prohibits government from

displaying the Ten Commandments, in a context replete with

secular and historical monuments, to acknowledge the

Commandments’ historical role in American culture and law.

ii

TABLE OF CONTENTS

Ng Pe Pe yn ee ea ee i

be fe Pr Pr re ee et eee il

Raden CEMONION «nooks he shaw eee «hans seas iil

Dterant OF AMIS as tc hasvs cadena aa eka l

Sumenary Of Gil AOE on on os eee ee ewes sees 2

PSQOUO oo i vesees ci bceeeeel eee ee 3

I. The Permissibility of Government Displays of the Ten

Commandments Raises a Question of National

PETE a er ee ee ee eee 3

II. There is a Significant Split in the Courts of Appeals as

to Whether Ten Commandments Displays Violate the

Eatebiiennet CWE... «skh eax ube soe eebns sss 6

Il. The Court Should Clarify and Reaffirm the Extent to

Which Government May Legitimately Acknowledge

Religion’s Role as a Foundational Aspect of Our

Nation’s Laws and Heritage .................... 12

IV. This Case Is a Proper Vehicle for the Court to Consider

the Establishment Clause Questions.............. 16

ill

INDEX OF AUTHORITIES

Cases

ACLU Neb. Found. v. City of Plattsmouth,

186 F.Supp.2d 1024(D. Neb. 2002) ................ 4,7

Adland v. Russ, 307 F.3d 471 (CA6 2002) ............. 6-11

Am. Civil Liberties Union of Ohio Found., Inc. v.

Ashbrook, 211 F.Supp.2d 873 (N.D. Ohio 2002) ...... 4,7

Am. Civil Liberties Union of Tenn. v. Hamilton

County, 202 F.Supp.2d 757 (E.D. Tenn. 2002) .......... 4

Am. Civil Liberties Union of Tenn. v. Rutherford

County, 209 F.Supp.2d 799 (M.D. Tenn. 2002) ......... 4

Am. Civil Liberties Union v. McCreary County, Ky.,

145 F.Supp.2d 845 (E.D. Ky. 2001) ................ 4,7

Am. Civil Liberties Union v. Mercer County,

240 F.Supp.2d 623 (E.D. Ky. 2003) .............. 4, 6-7

Am. Civil Liberties Union v. Pulaski County, Ky.,

96 F.Supp.2d 691 (E.D. Ky. 2000) ................... 4

Anderson v. Salt Lake City Corp.,

ie we we Bs) 6-12

Books v. City of Elkhart, 235 F.3d 292 (CA7 2000),

cert. denied, 121 S.Ct. 2209 (2001) .............. 3, 6-12

Capitol Square Review & Advisory Bad. v. Pinette,

co Tern eae 9

Christian v. City of Grand Junction, No. 01-CV-685,

2001 WL 34047958 (D. Colo. June 27, 2001)......... 4,6

Colorado v. Freedom From Religion Found.,

Pew rae BES CUO, TODS)... ccc nce cces 6-12

iV

Comm. for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973) ..... 12

County of Allegheny v. ACLU, 492 U.S. 573 (1989) . 8, 9, 13, 16

Doe v. Harlan County Sch. Dist., 96 F.Supp.2d 667

ee PT ee ee ete Pees 4

Edwards v. Aguillard, 482 U.S. 578 (1987) .............- 10

Epperson v. Arkansas, 393 U.S. 97 (1968) ............... 12

Everson v. Board of Educ., 330 U.S. 1 (1946) ............. 12

Freethought Society v. Chester County,

191 FSA. DE DOP Cw WO DUE) wv srsescncescsceves 4

Glassroth v. Moore, 229 F.Supp.2d 1290 (M.D. Ala. 2002) ... 4

Indiana Civil Liberties Union v. O’Bannon,

Aare Tee eat DOMED ove ecianetb ens 6-8, 11, 12, 17

Kimbley v. Lawrence County, Ind.,

119 F.Supp.2d 856 (S.D. Ind. 2000) .................. 4

Lamb’s Chapel v. Center Moriches Union Free

ee , CTT ETO ee ee 8

Lemon v. Kurtzman, 403 U.S. 602 (1971) .......... 2, 8,9, 13

Lynch v. Donnelly, 465 U.S. 668 (1984) ....... 8,9, 13, 14, 16

Marsh v. Chambers, 463 U.S. 783 (1983) ............. 14, 16

Newdow v. U.S. Congress, 2003 WL 554742,

me Mek er ee eer re 15

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) ..... 16

Sch. Dist. of Abington Tp. v. Schempp,

Liege 1, | BRS pn re rarer a 12, 13

Stone v. Graham, 449 U.S. 39 (1980) ............. 10, 11, 17

Vv

Suhre v. Haywood County, N.C., 55 F.Supp.2d 384

CPs: Oi EEL anced nS 4 oak 6 EN veal a Sat eta 7

Summum v. Callaghan, 130 F.3d 906 (CA10 1997) ........ 10

Van Orden y. Perry, No. A-02-CA-833-H

COP BOR, CIO Be SIE ao occ Sek vo ccvwdden 4,6

Wallace v. Jaffree, 472 U.S. 38 (1985) ................ 8, 12

Zorach v. Clauson, 343 U.S. 306 (1952) .............. 12, 13

Statutes and Rules

Ind. Code §36-1-16-2 (West Supp. 2001) ...............0. 3

Ind. Code §4-20.5-21-2 (West Supp. 2001) ................ 3

Ky. Rev. Stat. §158.195 (Michie 2001) ................... 3

N.C. Gen. Stat. §115C-81(g)(3b) (1999) .........0.0..00.. 3

N.M. Stat. §§22-15-15 to 22-15-20 (Michie 2001) .......... 3

S.D. Codified Laws §13-24-17.1

ce aesrdete: <x rte: MELE EEL eee 3

Other Authorities

Display the Ten Commandments: An Important Step in

Promoting Morality, Christian Law Association, available

at http://www.christianlaw.org/display_ 10c.html ........ 5

John Elvin, INSIGHT MAG., June 7, 1999, at 34, available at

FP Ws OP PRMEs 0v KEES Gb i ad's Lads HAS b ORR 5

Freedom from Religion Foundation, Action Alert (Sept. 5,

2001), at http://www.ffrf.org/action/10comm.html (last

WORE IE. DU ID. kee eks Secu Mosvedidiciwicca 4

vi

Joe Garner, ACLU Sues Over Commandments, MILWAUKEE J.

SENTINEL, May 6, 2001, at 12A, available at 2001 WL

PIOUS 6 sé kaeuapk 0a nseei ee eee 5

John Hostettler, The Church/State Separation Fallacy, (Aug. 1,

2001), available at 2001 WL 5421955 ................ 5

Joshua Hammann, ACLU Sues State to Stop Ten

Commandments at Capitol, ASSOCIATED PRESS, July 11,

2000, available at WESTLAW, ALLNEWSPLUS database,

TA OO AP WHRES GES onc cece nsecevessuntasues 5

Robert E. Meyer, Some Misunderstand First Amendment,

MILWAUKEE J. SENTINEL, Aug. 11, 2001, at 14A, available

at ZOO WL, SS Fae kas ih nns deste tdicenecheigares 5

Rob Schmitz, The Ten Commandments: — Religious or

Historical Symbol? (Minnesota Public Radio broadcast,

Sept 10, 2001), available at http://news.mpr.org/

features/200109/10_scmitzr_laxten-m/index.shtml ....... 5

LOUIS TORRES, “TO THE IMMORTAL NAME AND MEMORY OF

GEORGE WASHINGTON”: THE UNITED STATES ARMY

CORPS OF ENGINEERS AND THE CONSTRUCTION OF THE

WASHINGTON MONUMENT 82-84 (U.S. Gov’t Printing

CiRoe, SRGGP. 0.0 0-4 keds came veknkes 600064 eee 15

State Legislative Update for the 2001 Sessions, at

http://www.au.org/states.htm (March 12, 2003) ......... 3

http://wallbuilders.com/resources/search/detail.php?Resource

|) i MTT eTTT TT ee 3

No. 02-1241

In the

Supreme Court of the United States

ARMOND RUSS, IN HIS OFFICIAL CAPACITY AS THE

COMMISSIONER OF THE KENTUCKY DEPARTMENT FOR

FACILITIES MANAGEMENT,

Petitioner,

V.

RABBI JONATHAN ADLAND, ET AL.,

Respondents.

On Petition for Writ of Certiorari

United States Court of Appeals for the Fifth Circuit

BRIEF OF THE STATES OF TEXAS, ALABAMA, INDIANA,

MISSISSIPPI, OHIO, OKLAHOMA, PENNSYLVANIA,

SOUTH CAROLINA, SOUTH DAKOTA, AND UTAH AS AMICI

CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICI

Over time, Texas and many other States have chosen to erect

monuments displaying the Ten Commandments as foundational to

the development of our system of laws. The recognition of the

importance of the Ten Commandments to the development of the

rule of law and to the availability of equal justice under law is

widespread, by the federal government, the state governments, local

governments, and by the people.

In recent years, these state and local monuments have been

subjected to consistent and frequent legal attack in an effort to

—eSVaXnwK eee

2

remove them and to prevent any future construction. The result of

this campaign is that States now face conflicting federal-and state-

court decisions on whether and when such monuments are

constitutional, and, more broadly, on just how far governments may

go in acknowledging religion as a part of our national heritage

through displays on public property that include both religious and

nonreligious symbols.

Through this case, the Court has the opportunity to provide state

and local government officials much-needed guidance and

clarification in this specific area of the law as well as in the wider

context of Establishment Clause jurisprudence.

SUMMARY OF THE ARGUMENT

For many decades, States and local governments have chosen

to acknowledge and memorialize the historical and cultural

contributions of the Ten Commandments to the development of

western legal codes. Today, there is a significant and growing split

of authority among the courts of appeals and state courts regarding

the constitutionality of these government displays of the Ten

Commandments. Not only have those courts come to opposite

constitutional conclusions regarding virtually identical displays, but

they have also differed starkly in their analysis of almost every

aspect of the test laid out in Lemon v. Kurtzman, 403 U.S. 602, 612-

13 (1971).

The importance of this issue is amply demonstrated by

widespread decisions of States, local governments, and even the

federal government to display the Ten Commandments, and by the

corresponding determination of opponents of such displays to bring

litigation to stop them. This Court should grant certiorari to resolve

the growing conflict among the lower courts and to reaffirm that

government may legitimately recognize the role of religion as a

foundational aspect of our nation’s law and culture.

:

3

ARGUMENT

I. THE PERMISSIBILITY OF GOVERNMENT DISPLAYS OF THE

TEN COMMANDMENTS RAISES A QUESTION OF NATIONAL

IMPORTANCE.

Hundreds of Ten Commandment monuments are displayed on

government property across the country. See Books v. City of

Elkhart, 235 F.3d 292, 294-95 (CA7 2000) (noting that local

chapters of the Fraternal Order of Eagles donated Ten

Commandments monuments to States and political subdivisions

across the country), cert. denied, 121 S.Ct. 2209 (2001). And the

government interest in displaying the Ten Commandments only

continues to grow. At least five States have enacted laws

authorizing the display of the Ten Commandments on public

grounds or in public schools. See Ind. Code §§4-20.5-21-2 (West

Supp. 2001) and 36-1-16-2 (West Supp. 200i); Ky. Rev. Stat.

§158.195 (Michie 2001); N.M. Stat. §§22-15-15 to 22-15-20

(Michie 2001); N.C. Gen. Stat. §115C-81(g)(3b) (1999); S.D.

Codified Laws § 13-24-17.1 (Michie Supp. 2001). Moreover, in the

last three years, legislatures in at least nine other States considered

bills to permit or require the display of the Ten Commandments on

government property or in public schools. See State Legislative

Update for the 2001 Sessions, at http://www.au.org/states.htm

(March 12, 2003).

The federal government, as well, deems it important to

commemorate the importance. of the Ten Commandments in the

development of the rule of law. For example, every visitor entering

the National Archives building to view the original Constitution and

Declaration of Independence must first pass under the Ten

Commandments embedded in the entryway to the Archives. See

http://wallbuilders.com/resources/search/detail.php?ResourceID=4 |

(last visited March 19, 2003). And, of course, Justices of this Court

need only look over their left shoulders from the bench to see

aap 4

Moses holding the Ten Commandments and looking down upon

them.

Yet these widespread public acknowledgments of the important

role of the Ten Commandments have, in recent years, become the

subject of an increasing series of litigation attacks.' Over the past

few years, there has been persistent and pervasive litigation seeking

to remove such displays or to prevent their future construction. See,

e.g., Am. Civil Liberties Union v. Mercer County, 240 F.Supp.2d

623 (E.D. Ky. 2003); Van Orden v. Perry, No. A-O2-CA-833-H

(W.D. Tex. October 2, 2002); Glassroth v. Moore, 229 F.Supp.2d

1290 (M.D. Ala. 2002); Am. Civil Liberties Union of Ohio Found.,

Inc. v. Ashbrook, 211 F.Supp.2d 873 (N.D. Ohio 2002); Am. Civil

Liberties Union of Tenn. v. Hamilton County, 202 F.Supp.2d 757

(E.D. Tenn. 2002); Freethought Society v. Chester County, 191

F.Supp.2d 589 (E.D. Pa. 2002); ACLU Neb. Found. v. City of

Plattsmouth, 186 F.Supp.2d 1024 (D. Neb. 2002); Am. Civil

Liberties Union of Tenn. v. Rutherford County, 209 F.Supp.2d 799

(M.D. Tenn. 2002); Am. Civil Liberties Union v. McCreary County,

Ky., 145 F.Supp.2d 845 (E.D. Ky. 2001); Christian v. City of Grand

Junction, No. 01-CV-685, 2001 WL 34047958 (D. Colo. June 27,

2001); Doe v. Harlan County Sch. Dist., 96 F.Supp.2d 667 (E.D.

Ky. 2000); Am. Civil Liberties Union v. Pulaski County, Ky., 96

F.Supp.2d 691 (E.D. Ky. 2000); Kimbley v. Lawrence County, Ind.,

119 F.Supp.2d 856 (S.D. Ind. 2000).

These litigation campaigns have thrust the status of state and

local monuments into substantial legal uncertainty and have sparked

' See generally Freedom from Religion Foundation, Action Alert

(Sept. 5, 2001), at http://www. ffrf.org/action/10comm.html (last visited

Mar. 20, 2003) (Internet web site urging persons to protest Ten

Commandment monuments on state property in Alabama, Arizona, and

Texas).

5

growing public debates about the permissibility of recognizing the

Ten Commandments publically.”

2 “What some see as a legal violation, others view as a symbol of our

nation’s roots.” Rob Schmitz, The Ten Commandments: Religious or

Historical Symbol? (Minnesota Public Radio broadcast, Sept. 10, 2001),

available at http://news.mpr.org/features/200109/10_scmitzr_laxten-

m/index.shtml. Opponents complain that a monument displaying the Ten

Commandments “sends the message that people who adhere to its

principles ‘are the inside, favored group’ . . . and people with other

beliefs are outsiders.” Joe Garner, ACLU Sues Over Commandments,

MILWAUKEE J. SENTINEL, May 6, 2001, at 12A, available at 2001 WL

9354431. They see the display as a “thinly disguised attempt[] to use

government to promote religion” and send a “distinctly Judeo-Christian

message.” See Joshua Hammann, ACLU Sues State to Stop Ten

Commandments at Capitol, ASSOCIATED PRESS, July 11, 2000, available

at WESTLAW, ALLNEWSPLUS database, 7/11/00 APWIRES 02:00:00.

On the other hand, supporters may see efforts to remove or block the

erection of such monuments as “part of a systematic campaign . . . to

denigrate God . . . in public life” and as “attempts-to deconstruct the

American way of life.” See id.; John Elvin, INSIGHT MAG., June 7, 1999,

at 34, available at 1999 WL 8673936. They view such monuments as a

simple “acknowledg[ment] of their religious heritage,” Robert E. Meyer,

Some Misunderstand First Amendment, MILWAUKEE J. SENTINEL, Aug.

11, 2001, at 14A, available at 2001 WL 9372349, and as a recognition of

the roots of the American justice system. John Hostettler, The

Church/State Separation Fallacy, (Aug. 1, 2001), available at 2001 WL

5421955. Supporters argue that “the Ten Commandments are as much

civic and historic treasures as they are religious,” and that the Decalogue

is “a code of moral conduct that promotes respect for our system of laws

and the good of society.” Display the Ten Commandments: An

Important Step in Promoting Morality, Christian Law Association,

available at http://www.christianlaw.org/display_ 10c.html.

6

II. THERE IS A SIGNIFICANT SPLIT IN THE COURTS OF APPEALS

AS TO WHETHER TEN COMMANDMENTS DISPLAYS VIOLATE

THE ESTABLISHMENT CLAUSE.

There is a growing split among the courts of appeals regarding

the constitutionality of Ten Commandments monuments. The Sixth

and Seventh Circuits have held that such monuments violate the

Establishment Clause. See Adland v. Russ, 307 F.3d 471 (CA6

2002); Indiana Civil Liberties Union v. O’Bannon, 259 F.3d 766

(CA7 2001); Books, 235 F.3d 292. The Tenth Circuit, on the other

hand, joined by the Colorado Supreme Court, has held similar

monuments constitutional. See Anderson v. Salt Lake City Corp.,

475 F.2d 29 (CA10 1973); Colorado v. Freedom From Religion

Found., 898 P.2d 1013 (Colo. 1995).

The split is clear,’ wide,’ and deep.’ The starkness of the split

* Its clarity is evident from the express disagreement among the

courts of appeals and from the utterly parallel factual scenarios

considered by each. See discussion infra.

* Its width is evident from the fact that the disagreement is not

merely over a narrow point of law. The courts diverge over virtually

every aspect of the Establishment Clause analysis concerning Ten

Commandments monuments. See discussion infra.

> Its depth is evident from the fact that there are three court of

appeals decisions on one side of the split (the Sixth Circuit and the

Seventh Circuit, twice) and two on the other (the Tenth Circuit and the

Colorado Supreme Court). And, there is even greater disagreement

among the district courts. Compare Van Orden v. Perry, No. A-02-CA-

833-H (W.D. Tex. October 2, 2002) (holding that display of Eagles’ Ten

Commandments monument on Texas Capitol grounds did not violate

Establishment Clause); Christian v. City of Grand Junction, No. 01-CV-

685, 2001 WL 34047958 (D. Colo. June 27, 2001) (holding that display

of Eagles’ Ten Commandments monument at city hall did not violate

Establishment Clause); Am. Civil Liberties Union v. Mercer County, 240

|

j

in the courts of appeals is further highlighted by the fact that, with

the exception of one, all of the monuments in question were

virtually identical—each had been donated by the Fraternal Order

of Eagles during the 1950s and 1960s. See Adland, 307 F.3d, at

4715; Books, 235 F.3d, at 296; Colorado, 898 P.2d, at 1016-17;

Anderson, 475 F.2d, at 30. The Indiana statehouse monument at

issue in O’Bannon was similar, but actually had replaced the

original Eagles plaque, which had been destroyed earlier by

vandals. See 259 F.3d, at 768. All of the monuments contained

virtually identical Ten Commandments text, although the

monument in O'Bannon also included the text of the Bill of Rights

of the United States Constitution and the text of the Preamble to the

1851 Indiana Constitution. See Adland, 307 F.3d, at 475;

O'Bannon, 259 F.3d, at 768-69; Books, 235 F.3d, at 296; Colorado,

898 P.2d, at 1016.

And all of the monuments save Indiana’s also contained similar

symbols, including small tablets containing ancient Hebrew script,

the Star of David, a pyramid containing an all-seeing eye, letters of

the Greek alphabet superimposed upon one another and thought to

signify Christ, an eagle grasping the United States flag, and a scroll

F.Supp.2d 623 (E.D. Ky. 2003) (holding that display of Ten

Commandments in county courtroom did not violate Establishment

Clause); and Suhre v. Haywood County, N.C., 55 F.Supp.2d 384 (W.D.

N.C. 1999) (same) with ACLU Neb. Found. v. City of Plattsmouth, 186

F.Supp.2d 1024 (D. Neb. 2002) (holding that display of Eagles’ Ten

Commandments monument in city park violated Establishment Clause);

Am. Civil Liberties Union of Ohio Found., Inc. v. Ashbrook, 211

F.Supp.2d 873 (N.D. Ohio 2002) (holding that county judge’s display in

courtroom of Ten Commandments poster along with Bill of Rights poster

violated Establishment Clause); and Am. Civil Liberties Union v.

McCreary County, Ky. 145 F.Supp.2d 845 (E.D. Ky. 2001) (holding that

counties’ and school districts’ display of Ten Commandments with other

historical documents violated Establishment Clause).

8

stating that the monument was donated by the Eagles. See Adland,

307 F.3d, at 476; Books, 235 F.3d, at 296; Colorado, 898 P.2d, at

1016; Anderson, 475 F.2d, at 30. Four of the monuments were

located—or planned to be located—among other monuments on the

grounds of the seat of government of either a state or a city. See

Adland, 307 F.3d, at 474-75 (Kentucky Capitol grounds);

O'Bannon, 259 F.3d, at 769 (Indiana Capitol grounds); Books, 235

F.3d, at 294 (City of Elkhart municipal building); Colorado, 898

P.2d, at 1014 (Colorado Capitol grounds). The remaining

monument was situated at the Salt Lake City-County Courthouse.

See Anderson, 475 F.2d, at 30.

These varying constitutional results, regarding virtually

identical monuments in virtually identical locations, were reached

after ostensibly applying the very same legal framework—that

never-dying “late-night” “ghoul,” the Lemon test. See Lamb’s

Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384,

398 (1993) (Scalia, J., concurring in the judgment); see also Lemon,

403 U.S., at 612-13.

By its terms, the first two prongs of the Lemon test ask (1)

whether the challenged state action has a secular purpose, and (2)

whether the primary effect of the state action advances or inhibits

religion. Id., at612. The Court has subsequently distilled Lemon’s

first two prongs to mean that government may take no action that

has the purpose or effect of endorsing or disapproving religion.

County of Allegheny v. ACLU, 492 U.S. 573, 600-01 (1989); Lynch

v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring).°

® Under this Court’s precedents, a government display has the

purpose of endorsing religion if it “convey[s] or attempt[s] to convey a

message that religion or a particular religious belief is favored or

preferred.” Allegheny, 492 U.S., at 593; Wallace v. Jaffree, 472 U.S. 38,

70 (1985) (O’Connor, J., concurring in judgment). In determining

whether a government display has the effect of endorsing religion, the

9

The courts of appeals disagree on the application of Virtually —

every facet of the Lemon test to these monuments. As an initial

matter, they diverge regarding the character of the text of the Ten

Commandments themselves. The Seventh Circuit found the

Decalogue to be “inherently religious” text that cannot “be stripped

of [its] religious, indeed sacred, Significance and characterized as

a moral or ethical document.” Books, 235 F.3d, at 302. This

conflicts with the Tenth Circuit’s view of the Ten Commandments

as “at once religious and secular” and as having “substantial secular

attributes,” Anderson, 475 F.2d, at 33, and with the Colorado

Supreme Court’s opinion that the Decalogue represents secular

history and natural law, Colorado, 898 P.2d, at 1024.

The courts of appeals also differ regarding the effect of the

symbols that accompany the text on the face of the monuments.

The Seventh Circuit held that the presence of Christian and Hebrew

text constituted an endorsement of religion. See Books, 235 F.3d,

at 307. That court similarly held that the eagle grasping the

American flag signified endorsement by “specifically link[ing]

religion . . . and civil government.” Jd. The Sixth Circuit agreed

with this analysis, holding that the “combination of revered secular

symbols like the American flag and the Ten Commandment [sic]

serves to link government and religion in an impermissible

fashion.” Adland, 307 F.3d, at 486-87.

question is “what viewers may fairly understand to be the purpose of the

display.” Allegheny, 492 U.S., at 595; Lynch, 465 U.S., at 692

(O’Connor, J., concurring). And that question is evaluated by the

objective standard of the reasonable observer, deemed to be informed of

the history and context of the display in question. Allegheny, 492 US.,

at 620; id., at 631 (O’Connor, J., concurring in part and concurring in

judgment); Lynch, 465 U.S., at 690 (O’Connor, J., concurring); Capitol

Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 779 (1995)

(O’Connor, J.,.concurring in part and concurring in judgment).

10

This reasoning conflicts with Colorado, in which the court held

that the same symbols did not endorse religion because their largely

secular character negated any message of endorsement. See 898

P.2d at 1023-24. “We find that the juxtaposition of the Christian

Chi and Rho with the Jewish Star of David reflects an

acknowledgment of reconciliation and diversity more than any

sentiment of intolerance.” /d., at 1023. The court also found that

the all-seeing eye had both secular and religious meanings, and thus

conveyed no message of religious endorsement. See id., at 1023-24.

Finally, unlike the Sixth and Seventh Circuits, the Colorado court

concluded that the eagle and American flag were “patriotic

symbols” that likewise expressed no endorsement of religion. See

id., at 1024.

The courts also disagree over the underlying purpose of erecting

Ten Commandments monuments. The Sixth and Seventh Circuits

relied principally on this Court’s decision in Stone v. Graham, 449

U.S. 39 (1980)—which concerned the constitutionality of

mandating the posting of the Ten Commandments in the coercive

context of public schoolchildren subject to compulsory attendance.

Notwithstanding Edwards v. Aguillard’s admonition that courts

should be “normally deferential to a State’s articulation of a secular

purpose,” absent a “sham,” 482 U.S. 578, 586-87 (1987), both

circuits read Stone as “compell{ing]” a rejection of the State’s

proffered secular purposes, Adland, 307 F.3d, at 481; see also

Books, 235 F.3d, at 302-04. In contrast, Anderson’ and Colorado

” To be sure, the fact that Anderson was decided before Stone has

provided a basis for a Tenth Circuit panel, in a footnote dictum, to

question its reasoning. See Summum v. Callaghan, 130 F.3d 906, 913 n.8

(CA10 1997). But Summum did not overrule Anderson, id., and neither

did Stone (indeed, the Stone majority did not even mention Anderson,

despite the dissent’s reliance on the case, see 449 U.S. at 196 (Rehnquist,

J., dissenting)). And Anderson was in a far different context—not in a

Ne RDN EN oe Ne NN CTL Se ge A eS a RR ae

11

both found ample secular purposes in erecting the Virtually identical

monuments, given the Ten Commandments’ “substantial secular

attributes,” 475 F.2d, at 33, “expressions of universal standards of

behavior common to all western societies,” and “large role in the

development of the common law and. . . national constitution,” 898

P.2d, at 1024.

Finally, the courts diverge on whether the overall secular

context of the monuments contributes to or detracts from any

message of religious endorsement. The Sixth Circuit held that the

secular monuments and displays that were to surround the Ten

Commandments monument in the Kentucky Capitol garden area

were essentially of neutral effect, neither enhancing nor diminishing

the religious endorsement the court found to emanate from the

monument. See Adland, 307 F.3d, at 487-88. The Seventh Circuit,

on the other hand, held that the secular context of the Indiana

monument amplified the Ten Commandments’ religious message.

It found that the juxtaposition of the Bill of Rights and the

Preamble to the Indiana Constitution alongside the text of the Ten

Commandments “impermissibly linked” religion and government,

resulting in an improper religious endorsement. See O’Bannon, 259

F.3d, at 773. Similarly, in Books, the Seventh Circuit concluded

that the secular monuments surrounding the City of Elkhart’s Ten

Commandments monument augmented the religious nature of the

Decalogue. See 235 F.3d, at 306.

In contrast, the Colorado court held that the context of

Colorado’s Ten Commandments monument communicated secular

history and thus neutralized the Ten Commandments’ religious

character. “The various monuments found around the park in fact

represent a cornucopia of different cultural events and experiences

potentially coercive schoolroom setting—than Stone, as Colorado

compellingly reasoned. 898 P.2d, at 1022-23.

12

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

is also Colorado.” Colorado, 898 P.2d, at 1025. That conclusion

is squarely inconsistent with the Seventh Circuit’s view that secular

surroundings constitute an “impermissible link” between religion

and government that somehow enhances religious endorsement.

The decision below and the decisions in Books and O'Bannon

fundamentally conflict with the decisions in Anderson and

Colorado. The Court should grant certiorari to resolve this conflict.

III. THE COURT SHOULD CLARIFY AND REAFFIRM THE EXTENT

TO WHICH GOVERNMENT MAY LEGITIMATELY

ACKNOWLEDGE RELIGION’S ROLE AS A FOUNDATIONAL

ASPECT OF OUR NATION’S LAWS AND HERITAGE.

“{I}t has never been thought either possible or desirable to

enforce a regime of total separation [between religion and

government].” Comm. for Pub. Educ. v. Nyquist, 413 U.S. 756, 760

(1973). The overarching principle animating the Establishment

Clause is government neutrality towards religion. See Wallace, 472

U.S., at 60. That is, government cannot favor religion over

nonreligion, and it cannot favor one religion over another. See

Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968); Sch. Dist. of

Abington Tp. v. Schempp, 374 U.S. 203, 226 (1963). At the same

time, government cannot “show a callous indifference to religious

groups” because “[t]hat would be preferring those who believe in

no religion over those who do believe.” Zorach v. Clauson, 343

U.S. 306, 314 (1952); see also Everson v. Board of Educ., 330 U.S.

1, 18 (1946) (stating that the First Amendment “requires the state

to be a neutral in its relations with groups of religious believers and

non-believers; it does not require the state to be their adversary”).

As Justice Goldberg wrote in Abington,

“untutored devotion to the concept of neutrality can lead to

invocation or approval of results which partake not simply

of that noninterference and noninvolvement with the

13

religious which the Constitution commands, but of brooding

and pervasive devotion to the secular and a passive, or even

active, hostility to the religious. Such results are not only

not compelled by the Constitution, but, it seems to me, are

prohibited by it. Neither government nor this Court can or

should ignore the significance of the fact that a vast portion

of our people believe in and worship God and that many of

our legal, political and personal values derive historically

from religious teachings Government must inevitably take

cognizance of the existence of religion.” 374 U.S., at 306

(Goldberg, J., concurring).

The Court has also recognized that complete separation between

government and religion “‘is not possible in an absolute sense’” and

that “‘[s]ome relationship between government and religious

organizations is inevitable.”” Lynch, 465 U.S., at 672 (quoting

Lemon, 403 U.S., at 614). “Nor does the Constitution require

complete separation of church and state; it affirmatively mandates

accommodation, not merely tolerance, of all religions, and forbids

hostility towards any.” Id., at 673 (emphasis added); see also

Allegheny, 492 U.S., at 657 (Kennedy, J., concurring in the

judgment and dissenting in part) (“Government policies of

accommodation, acknowledgment, and support of religion are an

accepted part of our political and cultural heritage.”). The

Establishment Clause is elastic enough to “permit[] government

some latitude in recognizing and accommodating the central role

religion plays in our society.” Allegheny, 492 U.S., at 657

(Kennedy, J., concurring in judgment and dissenting in part).

Through accommodation, government shows “respect to the

religious nature of our people.” Zorach, 343 U.S., at 314.

Accordingly, this Court has consistently upheld the

constitutionality of recognizing the impact and significance of

religion on American culture and society. For example, the Court

has acknowledged that its own court proceedings open with an

14

announcement concluding, “God save the United States and this

Honorable Court.” Marsh v. Chambers, 463 U.S. 783, 786 (1983).

Similarly, in Lynch, the Court noted that “[{oJur history is replete

with official references to the value and invocation of Divine

guidance,” including official Thanksgiving and Christmas holidays,

House and Senate chaplains, the national motto “In God We Trust,”

the Pledge of Allegiance, religious paintings in the National

Gallery, Moses holding the Ten Commandments on the frieze of this

Court, and regular presidential proclamations for a National Day of

Prayer.’ 465 U.S., at 673-77. As Justice O’Connor explained,

“because of their history and ubiquity, those practices are not

understood as conveying government approval of particular

religious beliefs.” Jd., at 693 (O’Connor, J., concurring).

* The extent to which expressly religious acknowledgments have

been deemed acceptable by this Court is well illustrated by the text of

President Roosevelt’s 1944 Proclamation of Thanksgiving, quoted at

length by the Court in Lynch:

“(I]t is fitting that we give thanks with special fervor to our

Heavenly Father for the mercies we have received individually

and as a nation and for the blessings He has restored, through the

victories of our arms and those of our Allies, to His children in

other lands. . . .To the end that we may bear more earnest witress

to our gratitude to Almighty God, I suggest a nationwide reading

of the Holy Scriptures during the period from Thanksgiving Day

to Christmas.’” 465 U.S., at 675 n.3 (quoting Proclamation No.

2629, 9 Fed.Reg. 13,099 (1944) and citing similar proclamations

by six Presidents since (Proclamation No. 5098, 48 Fed.Reg.

42,801 (1983); Proclamation No. 4803, 45 Fed.Reg. 75,633

(1980); Proclamation No. 4333, 39 Fed.Reg. 40,003 (1974);

Proclamation No. 4093, 36 Fed.Reg. 21,401 (1971);

Proclamation No. 3752, 31 Fed.Reg. 13,635 (1966);

Proclamation No. 3560, 28 Fed.Reg. 11,871 (1963)).

15

To ignore the “history and ubiquity” of religion,? and of the

recognition of the Ten Commandments in particular, is to, in effect,

“adopt[] a stilted indifference to our past and present realities as a

predominantly religious people,” as Judge O’Scannlain noted in

dissent in another recent case striking down a longstanding religious

and cultural acknowledgment in public life. Newdow v. U.S.

Congress, 2003 WL 554742, __ F.3d __ (CA9 Feb. 28, 2003)

(O’Scanniain, J., dissenting from denial of rehearing en banc).'°

* Indeed, the very apex of the Washington Monument is inscribed

with the Latin phrase Laus Deo—“Praise be to God” —on the aluminum

tip of its capstone. LOUIS TORRES, “TO THE IMMORTAL NAME AND

MEMORY OF GEORGE WASHINGTON”: THE UNITED STATES ARMY CORPS

OF ENGINEERS AND THE CONSTRUCTION OF THE WASHINGTON

MONUMENT 82-84 (U.S. Gov't Printing Office, 1985).

'° As Judge Fernandez noted in the same case, public recognition of

the role and history of religion in America establishes a religion only “in

the fevered eye of persons who most fervently would like to drive all

tincture of religion out of the public life of our polity.” Newdow, 2003

WL 554742 at *23. (Fernandez, J., concurring and dissenting). Reading

the First Amendment to eliminate religious reference ultimately operates

instead to “confer[] a favored status on atheism in our public life.” /d, at

*13. (O’Scanniain, J., dissenting from denial of rehearing en banc).

With respect to the Pledge, such a reading is possible only “without

reference or regard to our collective experience in the half-century . .. .

In that time, generations of Americans have grown up reciting the Pledge,

religious tolerance and diversity has flourished in this country, and we

have become a beacon for other nations in this regard. As Judge

Fernandez observes, ‘it is difficult to detect any signs of incipient

theocracy springing up since the Pledge was amended in 1954." Id.

(citing id. at n. 4 (Fernandez, J., dissenting)). The same might be said of

the fifty some years since the Eagles began donating Ten Commandments

monuments throughout the country.

16

The Constitution requires no such hostility to religion. In short,

the amici States believe that between the two extremes of

government endorsement of religion and government hostility

against religion, there lies a broad zone in which government may

recognize or acknowledge the important foundational role religion

has played in our nation’s laws and history. Such practices are

acceptable because they are “simply a tolerable acknowledgment of

beliefs widely held among the people of this country.” Marsh, 463

U.S., at 792. And they are constitutional because, rather than

establish religion, such practices are part of “an unbroken history of

official acknowledgment by all three branches of government of the

role of religion in American life from at least 1789.” Lynch, 465

U.S., at 674.

IV. THis CASE IS A PROPER VEHICLE FOR THE COURT TO

CONSIDER THE ESTABLISHMENT CLAUSE QUESTIONS.

The presence of a dispute over ripeness does not present a

vehicle problem sufficient to prevent this Court from reaching this

important issue. Because this case was brought as a facial

challenge to the legislative resolution authorizing Kentucky’s Ten

Commandments monument, the case was tried before the legislative

resolution had ever actually been applied. But such is inherent with

any facial challenge.

Striking down a state monument on a facial challenge, as the

Sixth Circuit did here, is particularly inappropriate given this

Court’s consistent emphasis on the context of a given display. See

Allegheny, 492 U.S., at 597. Government action should be judged

“in its unique circumstances to determine whether it constitutes and

endorsement or disapproval of religion.” Lynch, 465 U.S., at 694

(O’Connor, J., concurring); cf. Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290, 315 (2000) (“Our inquiry into this question [whether

student-led prayer at varsity football games violates the

Establishment Clause] not only can, but must, include an

17

examination of the circumstances surrounding the enactment.”

[emphasis added]).

Yet facial challengesare routinely brought against these sorts of

monuments, and courts reach out to decide the merits. See, e.g.,

O'Bannon, 259 F.3d., at 768-69. Especially given the confusion

over the meaning in non-school contexts of this Court’s opinion in

Stone v. Graham—and the degree to which that decision resolves

the Ten Commandments Establishment Clause inquiry as a matter

of law—facial challenges to Ten Commandment monuments can be

expected to persist in the future, and courts will continue to address

them.

Accordingly, this Court’s guidance on when, if ever, such facial

challenges are appropriate is much needed by the States and will

clarify significant confusion in the circuits. Therefore, this Court

should take this opportunity to articulate a clear standard as to when

Ten Commandments monuments can be, and more specifically,

cannot be held facially unconstitutional under the fact-specific

Establishment Clause standards.

PRAYER

The petition for writ of certiorari should be granted.

March 27, 2003

18

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

BARRY R. MCBEE

First Assistant Attorney General

DON R. WILLETT

Deputy Attorney General

for General Counsel

JEFFREY $. BOYD

Deputy Attorney General

for Litigation

R. TED CRUZ

Solicitor General

Counsel of Record

AMY WARR

Assistant Solicitor General

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1826

COUNSEL FOR AMICUS CURIAE

THE STATE OF TEXAS