Opposition Brief — Simpson v. Chesterfield County Board of Supervisors

9

(2) the three-part Establishment Clause test

announced by the Court in Lemon v. Kurtz-

man, 403 U.S. 602 (1971), was not applica-

ble to constitutional challenges to legislative

invocations because of the long and wide-

spread historical practice of invocations, Jd.

at 786;

(3) the selection of a clergyman to give invoca-

tion prayers that invoke Divine guidance on

a legislative body “is not by its historic na-

ture proselytizing activity” and does not

“symbolically placle] the government's ‘offi-

cial seal of approval on one religious view’,”

463 U.S. at 791-92; and

(4) choosing the clergyman of a single Judeo-

Christian denomination to give an invoca-

tion — and excluding other religious leaders

- is not an endorsement of any specific relig-

ion and does not “advance[) the beliefs of

any particular church.” Jd.’

Thus, under Marsh, it is permissible to deny someone the

opportunity to give a legislative prayer if the prayer “falls

outside the long accepted genre of legislative prayer”, a genre

“often taking the form of invocations that reflect a Judeo-

Christian ethic...” Snyder v. Murray City Corporation, 159

" Simpson attempts to distinguish Marsh from this case by noting

that Nebraska selected a single, paid chaplain to perform its inv oca-

tions while Chesterfield uses oumerous, unpaid volunteer clergy.

However, the Marsh Court specifically recognized that legislative

bodies have employed a wide variety of processes for selecting clergy to

give invocations, including practices such as Chesterfield’s practice of

using rotating, unpaid clergy. Neither this Court nor the Fourth

Cirevit saw an Establishment Clause problem with any of these

practices. /d. at 794, 0.18.

10

F.3d- 1227, 1234 (10th Cir. 1998). Accordingly, Simpson

cannot give an invocation that falls within the long-

accepted genre of legislative prayer endorsed in Marsh, a

fact which Simpson confirmed in her Complaint by alleg-

ing that if allowed to give a prayer, she would not invoke

the guidance of any divinity whatsoever. (J.A. p. 10)

Simpson contends that t is case is not governed by

Marsh, characterizing the Fourth Circuit Court’s opinion

as “legal smoke and mirrors”. Instead, she argues that it is

controlled by Lemon, Larson v. Valente, 456 U.S. 228

(1982) and their progeny.’ See, Petition for Writ of Certio-

rari, pp. 4-7. Simpson's claim is at odds with this Court's

own analysis of Marsh, Lemon, Larsen and Establishment

Clause law as it relates to legislative invocations. See, e.g.,

Edwards v. Aguillard, 482 U.S. 578, 583, n.4 (1987) (“The

Lemon test has been applied in all cases since its adoption

in 1971, except in Marsh v. Chambers ... ”); Lynch v.

Donnelly, 465 U.S. 668, 697 (1984) (Brennan. J., dissent-

ing) (“the fact remains that Marsh v. Chambers is the only

case in which the Court has not applied either the Lemon

or a ‘strict scrutiny analysis’”) Marsh v. Chambers, 463

U.S. 783, 796 (1983) (Brennan, J., dissenting) (“The Court

makes no pretense of subjecting Nebraska's practice of

legislative prayer to any of the formal ‘tests’-that have

traditionally structured our inquiry into the Establish-

ment Clause”). As one member of this Court has observed:

... the existing legislative prayer practice,

Marsh plainly indicates, fits into a special nook -

* Simpson now inexplicably refuses to cite Lemon by name in her

petition. She does, however, cite multiple cases which eraploy the

Lemon test, such as the Court's recent opinion in McCreary County v.

ACLU of Kentucky, 545 U.S. __, 125 S. Ct. 2722 (2005).

11

a narrow space tightly sealed off from otherwise

applicable first amendment doctrine. As to the

establishment clause, Justice Brennan described

Marsh as “carving out an exception ... rather

than reshaping ... doctrine to accommodate leg-

islative prayer. (citations omitted)

Kurtz v. Baker, 829 F.2d 1133, 1147 (D.C. Cir. 1987)

(Ginsburg, J., dissenting)

In light of this overwhelming weight of authority,

Judge Wilkinson, writing for the Fourth Circuit, properly

rejected Simpson’s contention and analyzed this case in

accordance with the controlling authority established by

MarshY In undertaking a Marsh analysis, the Fourth

Circuit observed that the analysis requires both an inquiry

into the substance of the invocations themselves and into

— * The Fourth Circuit has declined to apply Marsh outside the

realm of legislative prayer; see, North Carolina Civil Liberties Union v.

Constangy, 947 F.2d 1145 (4th Cir. 1991) (Marsh not applicable to

invocation given from bench by state court judge) and Mellen v.

Bunting, 327 F.3d 355, 370 (4th Cir. 2003) (Marsh not applicable to

supper prayer at state-supported university). However, even Simpson's

counsel admitted before the district court in Mellen that Marsh, and

only Marsh, applies when testing the constitutionality of legislative

prayer:

As to legislative prayer, it was approved by the same

Congress that adopted the First Amendment, and at ap-

proximately the same time. In the [Marsh] Court’s view,

this “unique history” demonstrated the Framers’ intent so

conclusively that it was not necessary to apply any of the

usual Establishment Clause tests. (Plaintiff's Reply in Sup-

port of Motion for Summary Judgment, p. 10, fn. 9. (Em-

phasis in original)).

Simpson’s counsel was even more emphatic before the Fourth Circuit in

Mellen: “Marsh is sui generis.” (Brief of Appellees, p. 47.)

12

the process by which clergy are selected to give invoca-

tions.

To test the propriety of the substance of invocations

given to Chesterfield’s legislative body, Judge Wilkinson

employed the standards enunciated in Marsh: (1) whether

the prayer fits within the genre of legislative prayer that

‘has become part of the fabric of our society ... ’ Snyder,

159 F.3d at 1233, quoting Marsh, 463 U.S. at 792; and (2)

whether there were indications “that the prayer opportu-

nity has been exploited to proselytize or advance any one,

or to disparage any other, faith or belief.” Marsh, 463 U.S.

at 794-95. The court noted the diverse, non-sectarian

nature of invocations given to the County's Board of

Supervisors over time, invocations which the trial court

itself found to be no more than “brief, benign pronounce-

ments of simple values that are not controversial nor

confrontational”. 292 F. Supp. 2d at 820. Judge Wilkinson

found that these nonsectarian invocations were solidly

“within the genre of legislative invocational prayer that

‘has become part of the fabric of our society’.” 404 F.3d at

282-83.

The court also found that the prayer opportunity had

not been used to proselytize or advance any particular

religion or to disparage any particular religion. The court

specifically noted that clergy of multiple faiths had used

the invocation opportunity to describe the divinity “in wide

and embracive terms” such as “Lord God, our creator,”

“giver and sustainer of life,” “the God of Abraham, of

Moses, Jesus, and Mohammed,” “Heavenly Father,” “Lord

our Governor,” “mighty God,” “Lord of Lords, King of

Kings, creator of planet Earth and the universe and our

own creator”. Jd. at 284.

13

Having determined that the substance of invocations

given under Chesterfield’s invocation policy meets the test

prescribed by Marsh, the Fourth Circuit turned its atten-

tion to the County’s process for selecting prayer-givers. In

doing so, Judge Wilkinson acknowledged the following

language in Marsh:

We, no more than Members of the Congresses of

this century, can perceive any suggestion that

choosing a clergyman of one denomination ad-

vances the beliefs of a particular church.

Marsh, 463 U.S. at 793. The court noted that the County’s

selection practice has resulted in invocations being given

by Islamic imams, Jewish rabbis, representatives of

Jehovah’s Witness congregations, and of other independ-

ent churches, a much wider variety of religious leaders

than a single Protestant minister. Since Marsh had held

that the selection of a single Presbyterian minister to give

invocations did not advance a particular religion, the

Fourth Circuit held that the County's use of a wide cross

section of Protestant, Catholic, Islamic, Jewish and inde-

pendent religious leaders also could not constitute ad-

vancement of a particular religion. In summary, the

Fourth Circuit concluded that the County's invocation

policy did not advance, proselytize or disparage any

particular religion and ensured that legislative prayers to

the Board were within the nonsectarian, Judeo-Christian

tradition which this Court held to be constitutionally

appropriate in Marsh. The County's selection process for

prayer-givers was significantly more inclusive than the

process affirmed in Marsh and guaranteed broad repre-

sentation by the County’s religious leaders. Under Marsh,

Judge Wilkinson was correct when he declared the

14

County’s invocation practice to be “constitutionally unre-

markable.” 404 F.3d at 283-84.

B. Both of the Circuits That Have Considered

Post-Marsh Challenges to Legislative Invo-

cations Applied Marsh Consistently and

Correctly.

Since this Court’s 1983 decision in Marsh, only two

Federal Circuit Courts have decided constitutional chal-

lenges to the practice of legislative prayer. This fact is

paradoxical given the pervasiveness of invocations before

federal, state and local legislative bodies throughout the

United States. Nonetheless, the dearth of appellate deci-

sions on invocations could have been anticipated given the

clarity of the Marsh decision and the relative ease with

which it can be constitutionally applied by legislatures

within the historic tradition of legislative prayer. The only

two federal appellate courts who have decided invocation

challenges since Marsh, the Fourth and Tenth Circuits,

applied Marsh both consistently and correctly.”

In a curious omission, Simpson’s petition does not

even mention the Fourth Circuit’s only other post-Marsh

invocation case, Wynne v. Town of Great Falls, 376 F.3d

292 (4th Cir. 2004), cert. denied, 125 S. Ct. 2990 (2005). In

Wynne, a town council had made the purposeful decision to

” A third invocation case, Kurtz v. Baker, 829 F.2d 1133 (D.C. Cir.

1987) was decided on procedural (standing) rather than substantive

grounds. Another case, challenging the payment of salaries and

expenses of Congressional chaplains, which was pending before the

Court of Appeals for the D.C. Circuit when Marsh was decided, was

summarily dismissed by the court in light of Marsh. Murray v. Bu-

chanan, 720 F.2d 689 (D.C. Cir. 1983).

15

give “pervasively and exclusively sectarian” invocations at

council meetings in which the town’s citizens actively

participated. Rather than attempt to adhere to Marsh’s

requirement that invocations must be nonsectarian

prayers which neither advance nor disparage religion,

Great Fails’ town leaders resolutely, and admittedly, chose

to begin meetings with Christian worship (which they

themselves led and in which the public was invited to

participate), to insist on the exclusive and repeated invo-

cation of Jesus Christ by name and, when challenged, to

assert (via the town mayor), “this is the way we’ve always

done things and we're not going to change.” 376 F.3d at

295.

The Fourth Circuit had little difficulty finding that

the Great Falls Town Council had improperly exploited its

legislative prayer opportunity and advanced one religion

over others in violation of Marsh. As Judge Wilkinson

wrote, “The insistent sectarianism of the-Great Falls

prayers ... violated even the spacious boundaries set forth

in Marsh.” 404 F.3d at 284."

Likewise, the Tenth Circuit in Snyder v. Murray City

Corp., 159 F.3d 1227 (10th Cir. 1998) (en banc), fully

" Judge Wilkinson noted that, in contrast to the town council in

Wynne, the Chesterfield Board of Supervisors “has aspired to non-

sectarianism and requested that invocations refrain from using Christ’s

name or, for that matter, any denominational appeal. . . . Chesterfield’s

openness to this ecumenism is consonant with our character both as a

nation of faith and as a country of free religious exercise and broad

religious tolerance... . [T]he restraints made plain in the Board’s policy

and respected by those who lead invocations ensure that prayers do not

‘proselytize or advance any one, or [] disparage any other, faith or

belief,’... and therefore are constitutionally sound.” 404 F.3d at 284,

quoting Marsh, 463 U.S. at 794-95.

16

embraced Marsh to hold that a citizen could constitution-

ally be denied the opportunity to give a prayer at a city

council meeting if that prayer fell outside the “long-

accepted genre” of legislative prayer. This “genre”, which is

discussed at length in Marsh, reflects a Judeo-Christian

ethic and serves as a nonsectarian request for wisdom,

solemnity and divine blessing on the legislative body. /d.

at 1234. Snyder claimed (like Simpson here) that, by

preventing him from offering his invocation prayer

“Murray City has impermissibly preferred one religion

over another.” As the Tenth Circuit defined the task before

it, “We must decide if this is so.”

To reach its decision the Tenth Circuit announced its

reliance on, and adherence to, the principles of Marsh

early in its decision: “[T]he mainline body of Establish-

ment Clause case law provides little guidance for our

decision in this case. Our decision, instead, depends on our

interpretation of the holding in Marsh.” Id. at 1232. The

Tenth Circuit ultimately concluded, consistent with

Marsh, that Murray City “has the power to open its

meetings with the kind of legislative prayer that our

nation over the course of more than 200 years has come to

see as ‘tolerable’”. Jd. at 1236. This “tolerable” expression

of legislative prayer was defined in Marsh as the invoca-

tion of Divine guidance and the “acknowledgement of

beliefs widely held among people of this country.” Jd. at

1233, quoting Marsh, 463 U.S. at 792.

The court concluded that Snyder's prayer did not fall

within this historic genre of legislative prayer and, in

addition, was disparaging in content. Either reason was

sufficient for the city to deny Snyder’s request to give his

prayer. 159 F.3d at 1235. In fact, the court held, based

on the method upheld in Marsh of selecting a single

17

Protestant minister from a single Protestant denomination

to give invocations for over a decade, “there can be no

Establishment Clause violation in the fact that a legisla-

tive body chooses not to appoint a certain person to give its

prayers.” Id. at 1233. According to Simpson, the Snyder

court suggests that the result in Snyder would have been

different if Snyder “had been excluded because of his

religion.” (Petition at 11.) Snyder neither suggests nor

implies such a hypothetical result. To the contrary, Snyder

states, citing Marsh, that the selection of a prayer-giver is

only impermissible if the selection is made for an imper-

missible motive, that is, to proselytize a particular faith,

disparage another faith or establish a particular religion

as the official religion of the legislature. Jd. at 1234, citing

Marsh, 463 U.S. at 793-95. The court concluded that

“under Marsh there is no ‘impermissible motive’ when a

legislative body or its agent chooses to reject a govern-

ment-sanctioned speaker because the tendered prayer falls

outside the long-accepted genre of legislative prayer. The

genre approved in Marsh is a kind of ecumenical activity

that seeks to bind peoples of varying faiths to_ ther in a

common purpose.” 159 F.3d at 1234.

In short, the only two courts of appeals that have

decided post-Marsh legislative invocation challenges have

consistently applied the decisional principles of Marsh to

reach consistent decisions.” Both courts have acknowledged

” Simpson also suggests that ‘here is “split in the circuits” because

there are legal disagreements among the majority, concurring and

dissenting opinions in Snyder. The majority decision in Snyder is the

decision in Snyder every bit as much as the majority decision in Marsh

is the decision in Marsh. As Judge Wilkinson wrote in Simpson about

Justice Brennan's dissenting opinion in Marsh: “We are of course

governed not by the dissent, but by the majority. Thus we must follow

(Continued on following page)

18

the historically-accepted genre of legislative prayer de-

scribed and upheld in Marsh. Both courts have consis-

tently applied Marsh’s prohibition against invocations that

proselytize, advance or disparage a particular religion.

Both courts have consistently held that the selection of a

prayer-giver, in the absence of such an “impermissible

motive,” is, as Marsh holds, “constitutionally unremark-

able.” 404 F.3d at 283-84, citing Mc.»A, 463 F. 2d at 794-

95. The decisions of these courts demonstrate that, far

from being in a state of “bewilderment” as Simpson claims,

the courts understand from Marsh when an invocation

practice must be invalidated under the Establishment

Clause (Wynne) and when an invocation practice passes

constitutional muster (Simpson and Snyder). The Fourth

and Tenth Circuits have proven that Marsh is capable of

being applied appropriately and without “bewildering”

difficulty. There is no split in the circuits that needs to be

mended by this Court.

the rubric announced in Marsh itself, and not the tests it rejected, in

the limited context of legislative prayer.” 404 F.3d at 281.

19

CONCLUSION

Simpson has not presented, as she must do under

Rule 10 of this Court, any compelling reason why this case

should be reviewed on a writ of certiorari. For the reasons

stated above, the County respectfully requests that Simp-

son’s petition be denied.

Respectfully submitted,

STEVEN L. MICAS

Chesterfield County Attorney

9901 Lori Road, Suite 503

P. O. Box 40

Chesterfield, Virginia 23832

Telephone: (804) 748-1491

Facsimile: (804) 717-6297

Y SEP 9 - 2055

OFFICE OF THE CLERK

No. 05-195

In the Supreme Court of the Anited States

CYNTHIA SIMPSON,

Petitioner,

v.

CHESTERFIELD COUNTY BOARD OF SUPERVISORS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF OF THE HINDU AMERICAN FOUNDATION,

BUDDHIST PEACE FELLOWSHIP, ASSOCIATION

ON AMERICAN INDIAN AFFAIRS, AND THE

INTERFAITH ALLIANCE AS AMICI CURIAE IN

SUPPORT OF PETITIONER

SUHAG A. SHUKLA EvAN M. TAGER

Hindu American Counsel of Record

Foundation ARCHIS A. PARASHARAMI

106 Hoover Boulevard Mayer, Brown, Rowe &

Tampa, FL 33602 Maw LLP

1909 K Street, NW

Washington, DC 20006

(202) 263-3000

Counsel for Amici Curiae

cite eae te mn oR mn Renae een Fame aemamenesneteteceatn ett Nema

WILSON-EPES PRINTING CO, INC. — (202) 789-0096 ~ WASHINGTON, D. C. 20001

TABLE OF CONTENTS

Page

Te ii

INTEREST OF THE AMICI CURIAE..........c.cscesscsesseesseereees l

INTRODUCTION AND SUMMARY OF

EEE 2

rar sccssenencsnencencnnonseyensesseet 3

A. Allocating The Privilege Of Delivering A

Legislative Prayer On The Basis Of Religion

Violates The Core Purpose Of The

ccc ceseescsnnntuen 3

B. Chesterfield County’s Exclusionary Policy

Renders Hindus, Buddhists, And Native

Americans (Among Others) Second-Class

SS EE 7

ir rade esincchccnbenecnneenooueboceousoenoceeceee 7

EEE 10

3. Native American Religions. .................cc0cceeeee 13

C. Allowing Governmental Officials To

“Review” Theological Questions Is Anathema

To The Establishment Clause...................sccsssecersseees 14

D. The Decision Beiow Threatens To Encourage

Other Localities To Engage In Religious

EEE EELS SEL 16

Sinica peeegnucntonneeeouvevevevevesccevecececeees 18

(1)

TABLE OF AUTHORITIES

Page(s)

CASES

Board of Educ. of Kiryas Joel Village Sch. Dist. v.

Goud, FES Gah Gay Ce i acitterncnnninnmasiilt 7

eo TW 8G NS BG ene 10

Engel v. Vitale, 370 U.S. 421 (1962).......:cccccsecesereresseerseeenees 5

Epperson v. Arkansas, 393 U.S. 97 (1968) .......cceccesceeeeeneees 5

Lynch v. Donnelly, 465 U.S. 668 (1984) .........c.ccccccseseneeeeeneees 6

McCreary County v. Am. Civil Liberties Union,

vy) Gh. 0 ee ee 4

Presbyterian Church in the United States v. Mary

Elizabeth Blue Hull Memorial Presbyterian

Coareh, SIS UE. GE CIS eee ciceninstinstinectintintiinine 15

School Dist. of Abington Twp. v. Schempp,

FPO ULE. Bed Clee cnn 4

United States v. Lee, 455 U.S. 252 (1982) ........cccccceccceceseeees 16

Van Orden v. Perry, 125 S. Ct. 2854 (2005)............:ccccceeeee 3-4

Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872).................. 15

West Virginia State Bd. of Educ. v. Barnette,

FeO Re Ger i ieniccinisetianintinmantaiitaiasvnitinnmnaiiinesian 4

Wynne v. Town of Great Falls, 376 F.3d 292

(4th Cir. 2004), cert. denied, 125 S. Ct. 2990

6 EEE aes CER LS Ree Re vk 16

LAW REVIEWS

Thomas C. Berg, Minority Religions and the Relig-

ion Clauses, 82 WASH. U.L.Q. 919 (2004)...........ccccceeeee 3

Dmitry N. Feofanov, Defining Religion: An Immod-

est Proposal, 23 Horstra L. Rev. 309 (1994).........c.0000. 10

Sarah B. Gordon, Comment, Indian Religious Free-

dom and Governmental Development of Public

Lands, 94 YALE L.J. 1447 (1985) ........cccccecesceecereeesereees 14

Emily Marden, The Neem Tree Patent: Interna-

tional Conflict over the Commodification of

Life, 22 B.C. INT’L & Comp. L. REV. 279 (1999)........... 10

BOOKS

Benderly, Religious Life, INDIA: A COUNTRY STUDY

Os ee: HE ncerccnpensenesenmnmsmiannnnntennetztenmecsns 15

MICHAEL CARRITHERS, BUDDHA: A VERY SHORT

EEE PE ante Snes SNORE 12

ARTHUR A. COHEN, THE MYTH OF THE JUDEO-

CHRISTIAN TRADITION (1970).......cccccsccrccsseseseersccessressssees 9

4 J. ELLIOT, DEBATES IN THE SEVERAL STATE

CONVENTIONS ON THE ADOPTION OF THE

FEDERAL CONSTITUTION (1836) ........:ccccccceseeceeeesseecereneeees 5

THE FEDERALIST NO. 51 (James Madison) ..............:00:0c0eerees 3

His HOLINESS TENZIN GYAYTSO, THE FOURTEENTH

DALAI LAMA OF TIBET, OPENING OF THE

ce eemenlliation 12

THE HOLY GEETA (Swami Chinmayananda cmt.,

is Ut csiieshtiineeitctnitintesitniadaceilicainbdiatissiaiitimibeaneiibmneatiinn 9

AKE HULTKRANTZ, NATIVE RELIGIONS OF NORTH

ae ceencicninitntnianriiernncniantinatantecsnninemvencsnesines 13

T. Jefferson, Autobiography, THE WRITINGS OF

THOMAS JEFFERSON (P. Ford ed. 1892) .00..........ccccceeceeeeeee 6

D. Killingly, Hinduism, MAJOR WORLD RELIGIONS:

FROM THEIR ORIGINS TO THE PRESENT (L. Rid-

STE Cig BOOED cocittnnesnicctnnantintcnninniamsennenaiipanericeranies 8

iv

DONALD S. LOPEZ, JR., THE STORY OF BUDDHISM

TTI tacenaieniesinsheainnininnaiaiciniacinadhitesbiabiaaeithdaitiattaiaiindalieaiaiaiiiiaiiuei 11

JACOB NEUSER, JEWS AND CHRISTIANS: THE MYTH

OF A COMMON TRADITION (1991) .......cccccccsseesseesesseereeessees 9

SATGURU SIVAYA SUBRAMUNIYASWAMI, DANCING

WITH SIVA: HINDUISM’S CONTEMPORARY

NE Oli: i icctpbectccniscecenasccrestaniconscunmenbintts 10

RICHARD HUGHES SEAGER, BUDDHISM IN AMERICA

I wiinciistsideslidinkte:satalteadaiaitialaeh digitata lastest 10, 11

ROBERT A.F. THURMAN, ESSENTIAL TIBETAN

Ge kehcrnitedhctecsenciuiditnataniitinitnisinbicintiniiaiinns 11

1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMER-

ICA (Arthur Goldhammer trans., Library of

FS Fe CI ertsectntstesinitabiamneinrninnnereessnsctivioniaiel 4

THE WORLD ALMANAC AND BOOK OF FACTS

(William A. McGeveran ed., 2004 ed.) ........::cccccceeeeeeeeeees kK

THE WORLD ALMANAC AND BOOK OF FACTS

(William A. McGeveran ed., 2005 ed.)..........::ccceree 10-11

J. GORDON MELTON, ENCYCLOPEDIA OF AMERICAN

Le fi _. | enna EE OIE 7

NEWSPAPER ARTICLES AND PERIODICALS

Dan Carpenter, Devoutly Passing on a Prayer,

INDIANAPOLIS STAR, June 8, 2005.........cccccesrcesrersrerseeess 16

Bill Rankin & Richard Whitt, Prayers At Meetings

Challenged; Suit: Cobb Commission Shows

Bias, ATLANTA J.-CONST., Aug. 11, 2005. ......... cscs 17

Mary Rourke, Buddhism Takes on a Uniquely

American Form as Asian Youths and Westerners

Look to the East for Meaning, L.A. TIMES, Feb.

David Van Biema, Buddhism in America, TIME,

RRR ECORI Eat a AEN vee Se ne ll

Kenneth L. Woodward, Losing Our Moral Um-

brella: Politicians Appeal to a Judeo-Christian

Tradition, but Religious Scholars Say it No

Longer Exists, NEWSWEEK, Dec. 7, 1992.............cccecceeeee 9

MISCELLANEOUS

Brief for National Legal Foundation as Amicus Cu-

riae Supporting Defendant-Appellant, available

at http://www.nlf.net/About/briefs/simpson.nlf.-

Rs dtrereeneectaniqueiavinininsnnasniniinitnateiennintein 17

The ‘Common Era’ — A Secular Term for Year

Definition, http://www.bbc.co.uk/dna/h2g2/-

SEE COU cterecragnetareninmarennatimicesiuisiahdnpaiaitiniimtiummitemaiina 7-8

Hindu American Foundation, Short Answers to Real

Questions about Hinduism, http://www.hindu-

americanfoundation.org/Content/Hinduism-

Info/Hintro_questions.html. OREN TT OL REN ON AO 9

Hindu Center of Virginia: Membership: Life Mem-

bers, http://www. hinducenterofvirginia.org.................... 8

Hinduism, MICROSOFT ENCARTA ONLINE

ENCYCLOPEDIA (2005), http://encarta.msn.com/-

encyclopedia_761555715/Hinduism.html........................8

The Nobel Peace Prize 1989,

http://nobelprize.org/peace/laureates/1989..................... 12

Pluralism Project — Statistics by Tradition,

http://www.pluralism.org/resources/statistics/-

Se 8, 11

Richmond Buddhist Association: Center Profile,

http://www.pluralism.org/research/profiles/-

display.php?profile=72571 .............cceccesecesrseereeercenreceseees 12

vi

U.S. Census Bureau, Chesterfield County, Virginia

— Fact Sheet, http://factfinder.census.gov

U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF

THE UNITED STATES 2004-2005, available at

http://www.census.gov/prod/2004pubs/04statab-

PROT coceceeerecesesesensqensossneseqnsesocnseoesseeserenseeeeTessseesees 8,13

U.S. Census Bureau, Virginia — Fact Sheet,

http://factfinder.census.gov (search results)..,...........00+++ 13

Virginia Council on Indians, Virginia Tribes,

http://indians. vipnet.org/tribes/index.cfm ..........0:-00+-s0+: 13

Memorandum from John W. Whitehead, President,

The Rutherford Institute, to Concerned Parties,

Prayer at City Council Meetings: Analysis and

Guidelines (Apr. 28, 2005), available at

http://www.rutherford.org/PDF/2005.04.29.PDF ......... 16

INTEREST OF THE AMICI CURIAE

Amicus Curiae Hindu American Foundation is a human-

rights group whose purpose is to provide a voice for this na-

tion’s growing number of Hindu Americans. A central func-

tion of the HAF is to represent the interests of its members in

important matters before the courts, Congress, and the Ex-

ecutive Branch. !

Amicus Curiae Buddhist Peace Fellowship seeks to con-

tribute a Buddhist perspective to social and policy matters by,

among other things, furthering the values of wisdom, com-

passion, and peace. Founded in 1978, BPF has more than

4,000 members in 45 chapters in the United States and

abroad.

Amicus Curiae Association on American Indian Affairs

is a private organization governed by an all-Native American

Board of Directors. Its mission is to promote the welfare of

American Indians and Alaska Natives by supporting efforts

to sustain and perpetuate their cultures, protect their sover-

cignty, constitutional, legal and human rights, and natural

resources and improve their health, education, and economic

and community development. The Association has long been

involved in efforts to protect the religious freedom and sa-

cred lands of Native Americans.

Amicus Curiae The Interfaith Alliance is a national grass-

roots organization of over 150,000 individuals of faith and

goodwill drawn from more than 75 different religious tradi-

tions or beliefs — including Christianity, Judaism, Islam,

Hinduism, Buddhism, Native American religions, Wicca, and

others. Dedicated to promoting mutual respect, cooperation

' Pursuant to Rule 37.6, amici state that this brief was not authored in

whole or in part by counsel for a party and that no person or entity, other

than the amici curiae, their members, and their counsel made a monetary

contribution to its preparation and submission. The written consents of

the parties to the filing of this brief have been filed with the Clerk.

and civility, TIA strives to promote religion as a positive and

healing force in the life of the Nation.

As adherents of non-Judeo-Christian religions, Hindu

Americans, Buddhist Americans, and Native Americans have

a direct interest in this case. They, like all Americans, are ©

guaranteed religious freedom by the religion clauses of the

First Amendment. The ability of these minority religious

groups to take part equally in American civic life, a funda-

mental freedom protected by the religion clauses, is threat-

ened by the Fourth Circuit’s holding that the Establishment

Clause does not prohibit governments from excluding non-

Judeo-Christian clergy from eligibility to offer legislative

invocations. The Amici Curiae represented in this brief

therefore have a strong interest in urging this Court to grant

the petition for certiorari and reverse the decision below.

INTRODUCTION AND SUMMARY OF ARGUMENT

The Fourth Circuit held that the Establishment Clause is

no impediment to allocating the right to deliver invocations

at the beginning of public sessions of local legislative bodies

based exclusively on the religion of the applicant. In this

particular case, the local government expressly limits the

right to deliver invocations to representatives of monotheistic

religions in “the Judeo-Christian tradition” (Pet. App. 5-6,

32), while excluding representatives of all other religions,

including Hinduism, Buddhism, and Native American relig-

ions. Hence, if the Dalai Lama were to request the opportu-

nity to present an invocation before an open session of the

Chesterfield County Board of Supervisors, he would be

turned away — and under the Fourth Circuit’s understanding

of the Establishment Clause, there would be nothing wrong

with that.

And yet nothing could more squarely implicate the core

concerns underlying the Establishment Clause than discrimi-

nating among religions in the distribution of government fa-

vors. Not only is religious favoritism precisely the evil that

the Establishment Clause was aimed at precluding, but the

task of determining whether a particular religious sect is

monotheistic or “in the Judeo-Christian tradition” is clearly

one that the Framers saw to be a theological function, not a

governmental one. Governments are extraordinarily poorly

suited to be arbiters of theology, and when they arrogate that

role, nothing good can come of it. Not only are they certain

to err, but they cannot help driving wedges between religions

and between denominations of the same religion.

The decision of the Fourth Circuit eviscerates the Estab-

lishment Clause’s prohibition against discriminating among

religions — at least in the area of legislative prayer. The

Court should grant certiorari to correct this misguided and

deleterious exception to the fundamental precept that gov-

ernment may not discriminate on the basis of religion.

ARGUMENT

A. Allocating The Privilege Of Delivering A Legisla-

tive Prayer On The Basis Of Religion Violates

The Core Purpose Of The Establishment Clause.

This case involves questions that go to the heart of our

national identity. This country was founded upon the princi-

ple of religious liberty. But from time to time we have

strayed from that polestar to the disadvantage of adherents of

minority religions.” The exclusion of these groups from par-

ticipation in important -aspects of public life — including

civic rituals, like those conducted by respondent, that are

open to majority faiths — communicates societal disdain for

minority beliefs.

As Justice Breyer has noted, government favoritism

among religions is impermissible because it may “work de-

terrence” of the disfavored beliefs. Van Orden v. Perry, 125

2 See, e.g., Thomas C. Berg, Minority Religions and the Religion

Clauses, 82 WASH. U. L.Q. 919, 927 (2004) (giving historical exampies

of violent attacks on religious minorities).

S. Ct. 2854, 2868 (2005) (Breyer, J., concurring) (quoting

School Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 305

(1963) (Goldberg, J., concurring)). Such deterrence is, of

course, the result of the (accurate) perception of religious mi-

norities that their beliefs are scorned by their own govern-

ment and render them vulnerable to marginalization. Preven-

tion of such governmental discrimination was an animating

principle behind the First Amendment:

The Framers and the citizens of their time intended

not only to protect the integrity of individual con-

science in religious matters ***, but to guard

against the civic divisiveness that follows when the

Government weighs in on one side of religious de-

bate; nothing does a better job of roiling society, a

point that needed no explanation to the descendants

of English Puritans and Cavaliers (or Massachusetts

Puritans and Baptists).

McCreary County v. Am. Civil Liberties Union, 125 S. Ct.

2722, 2742 (2005) (internal citation omitted). See also West

Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638

(1943) (observing that the Bill of Rights was meant “to with-

draw certain subjects from the vicissitudes of political con-

troversy, to place them beyond the reach of majorities and

officials”); | ALEXIS DE TOCQUEVILLE, DEMOCRACY IN

AMERICA 295 (Arthur Goldhammer trans., Library of Amer-

ica 2004) (1835) (describing the Constitution as a counterma-

joritarian document intended largely to protect minorities

from the “tyranny of the majority”).

Indeed, the Framers believed that religious minorities

were to be not just protected but prized, because religious

diversity contributes to the security of religious freedom. See

THE FEDERALIST No. 51 (James Madison) (“In a free gov-

ernment the security for civil rights must be the same as that

for religious rights. It consists in the one case in the multi-

plicity of interests, and in the other in the multiplicity of

sects.”’).

For such reasons, Justice Iredell defended the Constitu-

tion’s prohibition on religious tests (Art. VI, cl. 3) during the

ratification debates in North Carolina:

[I]t is objected that the people of America may, per-

haps, choose representatives who have no religion at

all, and that pagans and Mahometans may be admit-

ted into offices. But how is it possible to exclude

any set of men, without taking away that principle

of religious freedom which we ourselves so warmly

contend for?

4 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS

ON THE ADOPTION OF THE FEDERAL CONSTITUTION 194

(1836).

Moreover, the Founders believed that state-sponsored re-

ligion posed as great a threat to the freedom of conscience as

did physical coercion:

By the time of the adoption of the Constitution, our

history shows that there was a widespread aware-

ness among many Americans of the dangers of a un-

ion of Church and State. These people knew, some

of them from bitter personal experience, that one of

the greatest dangers to the freedom of the individual

to worship in his own way lay in the Government's

placing its official stamp of approval upon one par-

ticular kind of prayer or one particular form of reli-

gious services. They knew the anguish, hardship

and bitter strife that could come when zealous reli-

gious groups struggled with one another to obtain

the Government’s stamp of approval from each

King, Queen, or Protector that came to temporary

power.

Engel v. Vitale, 370 U.S. 421, 429 (1962) (emphasis added).

See also Epperson v. Arkansas, 393 U.S. 97, 103-104 (1968)

(“Goveznment in our democracy, * * * may not aid, foster, or

promote one religion or religious theory against another or