Amicus Curiae Brief — Moore, Chief Justice, Supreme Court of Alabama v. Glassroth

a

Z) Supreme Court, U S

FILED

OCT 2 1 2003

No. 03-468 OFFICE OF THE CLERK |

In the | |

Supreme Court of the United States

ROY S. MOORE, CHIEF JUSTICE

OF THE ALABAMA SUPREME COURT,

Petitioner,

STEPHEN R. GLASSROTH, MELINDA MADDOX,

AND BEVERLY J. HOWARD,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

ET EE Oa ret nies

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MOTION FOR LEAVE TO FILE AMICUS

CURIAE BRIEF AND AMICUS CURIAE

BRIEF OF THE THOMAS MORE LAW

CENTER IN SUPPORT OF PETITIONER

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ames

Edward L. White II

Counsel of Record

Thomas More Law Center

3475 Plymouth Rd., Ste. 100

Ann Arbor, MI 48105

734-827-2001 ;

Fax: 734-998-4778

Attorney for Amicus Curiae

Thomas More Law Center

CURRY & TAYLOR @ WASH O.C. ¢ (202) 223-3160 ¢ USSCINFO.cCOM

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MOTION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF AND AMICUS CURIAE BRIEF OF THE

THOMAS MORE LAW CENTER IN SUPPORT OF

PETITIONER

Pursuant to Supreme Court Rule 37.2(b), the Thomas

More Law Center respectfully moves this Court for leave

to file the attached amicus curiae brief in support of the

Petitioner, Chief Justice Roy S. Moore. The consent of

the attorneys for the Petitioner has been obtained. The

consent of the attorneys for the Respondents was

requested but refused.

The Thomas More Law Center is a national, not-for-

profit, public interest law firm based in Ann Arbor,

Michigan. The Thomas More Law Center is dedicated to

defending and promoting the sanctity of human life,

time-honored values, and the religious freedom of

Christians, including the display of the Ten

Commandments on public property. As part of its

litigation efforts, the Thomas More Law Center has

represented government entities in defense of lawsuits

seeking to remove Ten Commandments monuments

from public property, and the Thomas More Law Center

has submitted amicus curiae briefs at the United States

Court-of Appeals level in support of the public display of

such monuments. In particular, the Thomas More Law

Center filed an amicus curiae brief, with the cons.t of

all parties, in the United States Court of Appeals for the

Eleventh Circuit in support of Chief Justice Moore.

Accordingly, the Thomas More Law Center has an

interest and an expertise in this area of the law, which

will be of assistance to this Court in deciding whether to

grant Chief Justice Moore’s petition for a writ of

certiorari.

The Thomas More Law Center’s amicus curiae brief

points out that this case presents not only the

opportunity, as argue * in the Petition, for this Court to

re-examine Lemon v ..zrtzman, 403 U.S. 602 (1971),

but also the opportunity to re-evaluate Stone v. Graham,

449 U.S. 39 (1980) (per curiam), and to clarify for the

lower courts the proper scope and applicability, if any,

of Stone to cases involving the display of the Ten

Commandments in non-public school contexts.

Respectfully submitted,

Edward L. White III

Counsel of Record

Thomas More Law Center

3475 Plymouth Road, Ste. 100

Ann Arbor, MI 48105

734-827-2001

Fax: 734-998-4778

Attorney for Amicus Curiae

Thomas More Law Center

October 21, 2003

i

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF AND AMICUS CURIAE BRIEF OF THE

THOMAS MORE LAW CENTER IN SUPPORT OF

PETITIONER

Pe i vccicsesccncssccccoressescccsccconssocoseoces soacsessves

STATEMENT OF IDENTITY AND INTEREST OF

EE

.

TABLE OF AUTHORITIES

CASES

ABINGTON SCH. DIST. V. SCHEMPP, 374 U.S.

203 (1963)...cccceceveeeeeeeees senna ee

ACLU v. City OF PLATTSMOUTH, 186 F. SUPP.

ZD 1024 (D. NEB. 2002) ........ccceccecsscecssesseccesesesees

ACLU v. HAMILTON COUNTY, 202 F. SUPP. 2D

757 (E.D. TENN. 2002) .............rccsescsscesseersesesees

ACLU v. MERCER COUNTY, 219 F. SUPP. 2D

TTT (ED. RY. 2ODZ) q...crcccocensevcccccessscereenseseccsensece

ADLAND V. Russ, 307 F.3D 471 (6TH CIR.

2002), CERT. DENIED, 123 S. CT. 1909

ANDERSON V. SALT LAKE CITY CorP., 475

F.2D 29 (10TH Cir. 1973), CERT. DENIED,

414. U.S. 879 (1973) covvosavnvsenovevcvvvccscsssssssocesseseeee

BOOKS V. CITY OF ELKHART, 235 F.3D 292

(7TH Cir. 2000), CERT. DENIED, 121 S. CT.

ELLA RLEAAOE

CITy OF ELKHART V. BOOKS, 121 S. CT. 2209

COLORADO V. FREEDOM FROM RELIGION

FOUND., 898 P.2p 1013 (CoL. 1995) (EN

BANC), CERT. DENIED, 516 U.S. 1111 (1996)

COUNTY OF ALLEGHENY V. ACLU, 492 U.S.

BE Ce iviecscsnrcrnersnenesnennnesesinscnasiinniicrninbaninamneenees

iii

CROCKETT V. SORENSON, 568 F. Supp. 1422

CD. Ck SE sisccicanes onl 9

EDWARDS V. AGUILLARD, 482 U.S. 578 (1987) ...........:.0000 7,8

ENGEL V. VITALE, 370 U.S. 421 (1962).............scccsccsssssseees 4,5

FREETHOUGHT SOC'Y V. CHESTER COUNTY,

334 F.3D 247 (SD CIR. 20038)..........cccccccsscsssccseseees pecionneeii 11

HOHN V. UNITED STATES, 524 U.S. 236 (1998) ............ceseeeee 6

KIMBLEY V. LAWRENCE COUNTY, 119 F. SUPP.

I i I. ciiccneniniinndl 5

LEE V. WEISMAN, 505 U.S. 577 (1992)...........ccsscsssssssssessseeees q

LEMON V. KURTZMAN, 403 U.S. 602 (1971) ..........cceeeseeeees 2,4

LYNCH V. DONNELLY, 465 U.S. 668 (1984) ..........eseeseeseeeeeee 10

SANTA FE INDEP. SCH. DIST. v. DOE, 530 U.S.

I Ce ierciccnininiinseiciaisvicnaiiaiantiiianinaiianitiiiiaiaitiieaimanedial 4

STONE V. GRAHAM, 449 U.S. 39 (1980) (PER

SUMMUM V. CITY OF OGDEN, 152 F. SUPP. 2D

1286 (D. UTAH 2001) AFF'D IN PART, REV'D

IN PART, 297 F.3D 995 (10™ CIR. 2002) .......seeesssseseesseeeeeees 9

RULES

Bete, Ce, Fh, FIG seieneersnceenenionsacininsinunicanianienianeniaisinmenieaaiainisinns ]

Dem. CR. BE. BEG ccviccnccictnienssnminaniiimnmnnnninaanest Niintineelinsenetiianaeie ]

1

STATEMENT OF IDENTITY AND INTEREST

OF THE AMICUS CURIAE

The Thomas More Law Center is a national, not-for-

profit, public interest law firm based in Ann Arbor,

Michigan. The Thomas More Law Center is dedicated to

defending and promoting the sanctity of human life,

time-honored values, and the religious freedom of

Christians, including the display of the Ten

Commandments on public property. As part of its

litigation efforts, the Thomas More Law Center has

represented government entities in defense of lawsuits

seeking to remove Ten Commandments monuments

from public property, and the Thomas More Law Center

has submitted amicus curiae briefs in the United States

Court of Appeals for the Sixth Circuit, Seventh Circuit,

and the Eleventh Circuit in support of the public display

of such monuments. Accordingly, the Thomas More

Law Center has an interest and an expertise in this area

of the law, which will be of assistance to this Court in

deciding whether to grant Chief Justice Moore’s petition

for a writ of certiorari.

The Thomas More Law Center appears as amicus

curiae in support of Chief Justice Moore and urges this

Court to grant his petition for a writ of certiorari.’

SUMMARY OF THE ARGUMENT

To date, this Court has not decided a case that

involves the display of the Ten Commandments,

whether displayed alone or as part of a broader display,

'‘ No counsel for a party authored this brief in whole or in part,

and no person or entity aside from the Thomas More Law Center

has made a monetary contribution to the preparation or submission

of this brief. Sup. Ct. R. 37.6. The Thomas More Law Center has no

parent corporation and no stock. Sup. Ct. R. 29.6.

=

in a non-public school context. This case presents this

Court with that opportunity.

More than twenty years ago, this Court decided in

summary fashion Stone v. Graham, 449 U.S. 39 (1980)

(per curiam), which involved the mandated display of

the Ten Commandments, by themselves, in public

school classrooms. This Court determined that even

though the Kentucky Legislature had set forth a secular

purpose for the display, the religious nature of the Ten

Commandments overrode that secular purpose and thus

led this Court to conclude that the Establishment Clause

had been violated.

Stone, although squarely a public school case, has

led to a presumption against the display of the Ten

Commandments in non-public school contexts. This

case presents this Court with the opportunity to re-

evaluate Stone and to clarify the proper scope and

applicability of Stone in order to provide lower courts

' with guidance on how to evaluate government displays,

which include the Ten Commandments, in non-public

school contexts.

Such guidance from this Court is especially needed

in light of the mounting litigation over the public display

of the Ten Commandments in non-public school

contexts, litigation that has resulted in contrary results

in this country.

This Court should grant a writ of certiorari in this

case for the reasons stated in this brief, as well as for

the reasons set forth in the Petition, including that this

Court re-examine Lemon v. Kurtzman, 403 U.S. 602

(1971), as a viable precedent. Pet. 11-25.

3

ARGUMENT

At issue in this case is the “moral foundation of law”

display that appeared in the Rotunda of the Alabama

Supreme Court and contained a monument that includes

the text of the Ten Commandments, which has secular

and religious attributes, along with the national motto

“In God We Trust,” and quotations from the Declaration

of Independence, George Mason, and James Madison

among many other quotations that address the moral

foundation of our law. In addition to the monument, the

display includes a plaque with quotations regarding the

moral foundation of law by Martin Luther King, Jr. and

Frederick Douglass. And, the display includes a plaque

inscribed with the Bill of Rights. Pet. App. 47a-50a, 52a,

‘04a-107a, 115a.

This Court has never decided a case that involves the

display of the Ten Commandments, whether alone or in

a broader context, as in the instant case, in a non-public

school context. This case presents this Court with that

opportunity.

More than twenty years ago, in Stone v. Graham, 449

U.S. 39 (1980) (per curiam), this Court considered a

Kentucky statute that required school officials to post a

copy of the Ten Commandments alone on the wall of

each public school classroom in Kentucky. Id. at 39.

This Court summarily struck down the law, holding that

it served no secular purpose, even though the Kentucky

Legislature had required the following statement of

secular purpose to appear at the bottom of each display:

“The 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.” Jd. at 41.

4

Despite the Kentucky Legislature’s stated secular

purpose for the display, this Court nevertheless

summarily wrote: “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, and no legislative recitation of a supposed secular

purpose can blind us to that fact. The Commandments

do not confine themselves to arguably secular matters. .

..” Id. at 41. This Court, therefore, concluded that the

Kentucky statute in question violated the first prong (the

purpose prong) of Lemon v. Kurtzman, 403 U.S. 602

(1971), and consequently violated the Establishment

Clause.” Id. at 42-43.

In reaching its ruling in Stone, apart from referencing

Lemon, this Court relied only on public school prayer

cases, id. at 4043 (citing Abington Sch. Dist. v.

Schempp, 374 U.S. 203 (1963) (Bible reading and Lord’s

Prayer), and Engel v. Vitale, 370 U.S. 421 (1962) (daily

prayer)), thus indicating that this Court viewed Stone as

a public school prayer case in concluding that the

Kentucky Legislature’s requirement that the Ten

Commandments be posted on the classroom walls was

purely a religious admonition along the lines of the

religious practices prohibited in Schempp and Engel.

* Justices of this Court have criticized Lemon, and the time has

come for this Court to re-evaluate Lemon as a viable precedent, as

Chief Justice Moore argues in his Petition. Pet. 11-25; see, e.g.,

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 319-20 (2000)

(Rehnquist, CJ., joined by Scalia and Thomas, JJ., dissenting)

(explaining that “Lemon has had a checkered career in the

decisional law of this Court” and collecting Supreme Court opinions

criticizing Lemon and noting further that this Court has stated that

Lemon is not binding on it).

5

Even though Stone is essentially a public school

prayer case and is limited to the public school context

with regard to the display of the Ten Commandments, as

Chief Justice Moore points out in his petition, “Stone has

become the touchstone of all Ten Commandment

display cases, as it was in the Court of Appeals below.”

Pet. 18 n.4.

In particular, the Court of Appeals relied on Stone in

rejecting Chief Justice Moore’s argument that the Ten

Commandments, which were part of the overall

Rotunda display, depicts the moral foundation of

secular duties. Pet. App. 27a, 30a. The Court of Appeals

stated that as this Court declared in Stone, “(t]he Ten

Commandments are 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.””

Id. (citing Stone, 449 U.S. at 41). Moreover, the Court of

Appeals. stated that the ‘“[ujse of the Ten

Commandments for a secular purpose . . . does not

change their inherently religious nature. .. .” Id.

The Court of Appeals’ reading of Stone illustrates an

incorrect presumption stemming from Stone that the

display of the Ten Commandments on government

property, even in a non-public school context, violates

the Establishment Clause based on the view that no

secular purpose for displaying the Ten Commandments

can overcome the religious nature of the Decalogue.

* E.g., Adland v. Russ, 307 F.3d 471, 480-81 (6” Cir. 2002), cert.

denied, 123 S. Ct. 1909 (2003); Books v. City of Elkhart, 235 F.3d

292, 302-04 (7" Cir. 2000), cert. denied, 121 S. Ct. 2209 (2001); ACLU

v. Hamilton County, 202 F. Supp. 2d 757, 763 (E.D. Tenn. 2002);

ACLU v. City of Plattsmouth, 186 F. Supp. 2d 1024, 1032 (D. Neb.

2002); Kimbley v. Lawrence County, 119 F. Supp. 2d 856, 865-66

(S.D. Ind. 2000).

6

This Court could hardly have intended such a

presumption when it drafted Stone more than twenty

years ago or intended for Stone to be applied to Ten

Commandments displays in non-public school contexts.

This case presents this Court with the opportunity to re-

evaluate Stone and clarify the proper scope and

applicability of Stone to cases involving the display of

the Ten Commandments in non-public school contexts.’

Indeed, this Court should not feel constrained to

follow Stone, which by its very nature is a weak

precedent, and this Court should be concerned with the

strength the lower courts have given to Stone in non-

public school contexts.’ Stone is a 5to4 per curiam

opinion. It was a “cavalier summary reversal” of the

courts of Kentucky that was done without the benefit of

oral argument, briefing, or plenary consideration by this

Court. Stone, 449 U.S. at 47 (Rehnquist, J., dissenting);

see also id. at 43 (Burger, CJ., joined by Blackmun, J.,

dissenting); id. (Stewart, J., dissenting). This Court has

explained that it is “less constrained to follow precedent

where . . . the opinion was rendered without full briefing

or argument.” Hohn v. United States, 524 U.S. 236, 251

(1998).

Reliance on Stone outside the public school context

has limited, if any, value since the unique and particular

circumstances of the public school context, which led to

* At the time Stone was decided, there was little, if any,

litigation over the public display of the Ten Commandments in non-

public school contexts, and there was only one published federal

circuit court decision on the subject, Anderson v. Salt Lake City

Corp., 475 F.2d 29 (10" Cir. 1973), cert. denied, 414 U.S. 879 (1973),

which the Stone majority did not even reference, further supporting

the conclusion that Stone is intended to be limited to the public

school context.

* See, e.g., n.3, supra.

7

the holding in Stone, do not extend outside that context.

This Court should make that clear to the lower courts.

The public school context in which the Stone

majority considered the display of the Ten

Commandments explains the majority's summary

conclusions about the Decalogue’s religious nature and

its summary rejection of the secular purpose advanced

by the Kentucky Legislature for displaying the Ten

Commandments in those classrooms.

This Court always has been especially concerned

about religious activities in public schools, a heightened

concern that it does not extend beyond the public

school context. See, e.g., Lee v. Weisman, 505 U.S. 577,

592 (1992) (“[T]here are heightened concerns with

protecting freedom of conscience from subtle coercive

pressure in the elementary and secondary public

schools.”); Edwards v. Aguillard, 482 U.S. 578, 583-84

(1987) (“The Cowrt has been particularly vigilant in

monitoring compliance with the Establishment Clause

in elementary and secondary schools.”); see also County

of Allegheny v. ACLU, 492 U.S. 573, 620 n.69 (1989)

(explaining that although a public display of a Christmas

tree and a menorah in a non-public school context was

found to be constitutional, such a display located in a

public school context would raise additional

constitutional considerations since the Establishment

Clause must be applied with a special sensitivity in that

context).

The heightened concerns this Court has about

anything religious in the public school setting, however,

should not be applied to displays of the Ten

Commandments in non-public school settings, where

children are not compelled to be present as they are in a

public school classroom where the Ten Commandments

8

are posted alone as in Stone. See Colorado v. Freedom

from Religion Found., 898 P.2d 1013, 1023 (Col. 1995)

(en banc) (explaining that reliance on Stone is

misplaced in analyzing the display cf the Ten

Commandments except when the Decalogue is

displayed in a public school classroom, where students

are compelled to aitend and are easily influenced), cert.

denied, 516 U.S. 1111 (1996).

Moreover, although originating from a religious text,

the Ten Commandments are not as limited in scope as

the Stone majority suggested. This Court should make it

clear to the lower courts that it did not intend in Stone

to limit the importance of the Ten Commandments to

being just a “sacred text” that lacks secular applications

and that it did not intend to raise the presumption that

the public display of the Ten Commandments violates

the Establishment Clause even in a non-public school

context.”

As has been repeatedly acknowledged, especially

after the issuance of Stone, except by a majority of this

Court, the Ten Commandments undeniably form the

basis of the judicial code of Western Civilization, which

is something that should be acknowledged in public and

which was what the broad display in the Rotunda of the

Alabama Supreme Court conveyed to its viewers. See,

e.g., City of Elkhart v. Books, 121 S. Ct. 2209, 2211

(2001) (Rehnquist, CJ., joined by Scalia and Thomas, JJ.,

dissenting from denial of certiorari) (“Undeniably .. .

* Although in Edwards v. Aguillard, 482 U.S. 578, 593-94 (1987),

a public school case, this Court explained that it did not mean in

Stone that “no use could ever be made of the Ten Commandments,

or that the Ten Commandments played an exclusively religious role

in the history of Western Civilization,” this limitation of Stone needs

to be reiterated by this Court in the context of the display of the

Ten Commandments in a non-public school setting.

9

the [Ten] Commandments have secular significance

[besides being a sacred text] because they have made a

substantial contribution to our secular legal codes.”);

Books v. City of Elkhart, 235 F.3d 292, 302 (7° Cir. 2000)

(“The text of the Ten Commandments no doubt has

played a role in the secular development of our society. .

. .”), cert. denied, 121 S. Ct. 2209 (2001); Anderson v.

Salt Lake City Corp., 475 F.2d 29, 33-34 (10th Cir. 1973)

(noting that the Ten Commandments have religious and

secular attributes), cert. denied, 414 U.S. 879 (1973);

ACLU v. Mercer County, 219 F. Supp. 2d 777, 784 (E.D.

Ky. 2002) (“[FJor good or bad, right or wrong, the Ten

Commandments did have an influence: upon the

development of United States law. . . .”); Summum v.

City of Ogden, 152 F. Supp. 2d 1286, 1294 (D. Utah 2001)

(“The ‘Ten Commandments,’ while a sacred text to some

and an ethical code of conduct to others, is also a

landmark in the history of the development of Western

law.”), aff'd in part, rev’d in part, 297 F.3d 995 (10" Cir.

2002); Crockett v. Sorenson, 568 F. Supp. 1422, 1428

(W.D. Va. 1983) (“[T]he Ten Commandments have had

immeasurable effect on Anglo-American legal

development.”); Colorado v. Freedom from Religion

Found., 898 P.2d 1013, 1024 (Colo. 1995) (en banc)

(noting “the historical fact that the Ten Commandments

has served over time as a basis for our national law”),

cert. denied, 516 U.S. 1111 (1996).

This Court should clearly acknowledge the

contributions the Ten Commandments have made to the

development of our law to ensure that there is no

presumption, as Stone tends to engender, that there can

be no secular purpose for the display of the Ten

Commandments in public, even in a non-public school

context.

19

Along those lines, because Stone pre-dates Lynch v.

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

v. ACLU, 492 U.S. 573 (1989), which are this Court’s two

leading cases that provide the analytical framework for

determining the constitutionality of government displays

of items with religious connotations, this Court should

clarify for the lower courts how Stone should be

weighed, if at all, when analyzing the display of the Ten

Commandments in non-public school contexts in light of

Lynch and Allegheny.

In Lynch and Allegheny, this Court upheld the

government display of religious symbols (the créche and

the menorah) as part of a broader display in a non-

public school context. Lynch, 465 U.S. at 671-72, 687;

Allegheny, 492 U.S. at 581-82, 621. Although in Lynch

and Allegheny religious objects (the créche and the

menorah) were permitted to be included in public

displays, the same result does not generally occur when

the Ten Commandments are involved, even though the

Commandments have both sacred and_ secular

attributes, which can reasonably be attributed to the

presumption in Stone against the public display of the

Ten Commandments, no matter the secular purpose for

the display. If a créche and a menorah, both religious

symbols, may be included in public displays, then the

Ten Commandments, which have both sacred and

secular attributes, should be permitted, especially when

the Ten Commandments are included in a broad display,

as occurred here, to commemorate the foundation of

our laws.

In sum, this case presents this Court with the

opportunity to re-evaluate and clarify Stone and to re-

examine Lemon. In so doing, this Court should give

guidance to the lower courts on how to analyze displays

of the Ten Commandments in non-public school

11

contexts, which is especially needed in light of the

mounting litigation in this area that has produced

contrary results throughout this country. E.g.,

Freethought Soc’y v. Chester County, 334 F.3d 247 (3d

Cir. 2003) (allowing display of Ten Commandments);

Adland v. Russ, 307 F.3d 471 (6" Cir. 2002) (not allowing

display of Ten Commandments), cert. denied, 123 S. Ct.

1909 (2003); Books v. City of Elkhart, 235 F.3d 292 (7°

Cir. 2000) (not allowing display of Ten Commandments),

cert. denied, 121 S. Ct. 2209 (2001); Anderson v. Salt

Lake City Corp., 475 F.2d 29 (10" Cir. 1973) (allowing

display of Ten Commandments), cert. denied, 414 U.S.

879 (1973); Colorado v. Freedom from Religion Found.,

898 P.2d 1013 (Col. 1995) (en banc) (allowing display of

Ten Commandments), cert. denied, 516 U.S. 1111 (1996).

CONCLUSION

This Court should grant a writ of certiorari in this

case for the above-stated reasons, as well as for the

reasons set forth in the Petition.

Respectfully submitted,

Edward L. White III

Counsel of Record

Thomas More Law Center

3475 Plymouth Road, Ste. 100

Ann Arbor, MI 48105

734-827-2001

Fax: 734-998-4778

Attorney for Amicus Curiae

Thomas More Law Center

October 21, 2003