Opposition Brief — Haskell County Board of Commissioners v. Green

CORPECTED COPY No. 09-531

IN THE

FILED

JAN 1 1 2010

OFFICE OF THE CLERK

Supreme Court of the United States

ooo -

HASKELL COUNTY BOARD OF COMMISSIONERS, ET AL.,

—V,—

Petitioners,

JAMES W. GREEN, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

MICHEAL SALEM

SALEM LAW OFFICES

101 East Gray, Suite C

Norman, Oklahoma 73069

(405) 366-1234

CHARLES S. THORNTON

AMERICAN CIVIL LIBERTIES

UNION OF OKLAHOMA

FOUNDATION

3000 Paseo Drive

Oklahoma City, Oklahoma 73103

(405) 525-383]

DANIEL MACH

Counsel of Record

HEATHER L. WEAVER

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street NW

Washington, DC 20005

(202) 675-2330

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, New York 10004

(212) 549-2500

QUESTIONS PRESENTED

Whether the Tenth Circuit properly refused to

abandon the contextual analysis long applied by this

Court to religious displays in Establishment Clause

cases, in favor of a blanket rule insulating virtually

all governmental displays of Ten Commandments

monuments from constitutional review?

Whether a person who regularly visits

government land on which a sectarian religious

symbol is displayed near the seat of local

government, and thus comes inio direct and

unwelcome contact with that symbol, has Article III

standing to bring an Establishment Clause challenge

to the governmental display?

RULE 29.6 CORPORATE DISCLOSURE

STATEMENT

The American Civil Liberties Union of Oklahoma

has no parent corporations, and no publicly held

corporation owns ten percent or more of the

American Civil Liberties Union of Oklahoma.

ul

TABLE OF CONTENTS

QUESTIONS PRESENTED ......ccccccoscocsssscescccscsccesccsees i

RULE 29.6 CORPORATE DISCLOSURE

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Te Re Ce iivtanstaniccesenrscsrarticensabncsnioes ili

Pe OE AEF rE FREE Watscseieseserceriseticvecsisemasenenns Vv

STATEMENT OF THE CASL................sccccccsesseeeceeees 1

A. F OCCUR BGT OUI aeons cscscseccsocesessesessssences it

B. PEOORGULAL TEIBAOET oicccccesevescescscceccescccsceess 11

REASONS FOR DENYING THE PETITION ......... 15

I. THE TENTH CIRCUIT'S CONTEXTUAL

APPROACH IS CONSISTENT WITH THIS

COURT’S RELIGIOUS-DISPLAY JURIS-

PRUDENCE AND THE FACT-SENSITIVE

STANDARD APPLIED BY THE OTHER

Cee ME deh vinaesneccdcsduesdudinaciecacces 15

A. Van Orden Did Not Abandon the Court’s

Cn asm aceon 16

B. The Differing Results in the Circuit

Courts’ Religious-Display Cases Stem

From Their Factual Differences, Not a

Split in Legal Principle .....................000 18

C. Petitioners’ Disagreement With the

Result of the Tenth Circuit’s Contextual

Analysis Does Not Warrant Review by

ER CNET Sivkks tassicsiquacctvasciseatancsivoeecenna 23

1)

Il. THE COURT OF APPEALS REACHED

THE CORRECT RESULT IN THIS

RUNNI oiidin nel coceccuanniiniaciamtnpsabuasaninamicevediaiwenne 24

Il. THE TENTH CIRCUITS STANDING

DETERMINATION IS UNEXCEPTIONAL

AND DOES NOT WARRANT REVIEW BY

IES seni isssihvasssancendiniatinscieccensapiniaen 31

EE IIIT cass csontvesasnisecersescaseiecrsiseimamirmaveinaines 34

iV

TABLE OF AUTHORITIES

Cases

ACLU of Ky. v. Mercer County,

432 F.3d 624 (6th Cir. 2005) .............00...... 19, 21, 22

ACLU of Ohio Found. v. Ashbrock,

376 F. 3d 464 (Gth Cir. 2004) .........ccccccccccccccccceccces 23

ACLU Neb. Found. v. City of Plattsmouth,

419 F.3d 772 (8th Cir. 2005) (en banc)..... 19, 20, 33

ACLU of Ga. v. Rabun County Chamber of

Commerce, Inc., 698 F.2d 1098 (11th Cir. 1983) .. 33

Adland v. Russ, 307 F.3d 471 (6th Cir. 2002).......... 33

Books v. City of Elkhart,

235 F.3d 292 (7th Cir. 2000) ................0000 21, 23, 33

Books v. Elkhart County,

401 FBG BB7 CTEM Caw. BOOS) ociccsccccccsesccccsccscceccseces 21

Card v. City of Everett,

520 F.3d 1009 (9th Cir. 2008) .................ccceeees 19, 20

Clayton v. Place, 884 F.2d 376 (8th Cir. 1989)........ 27

Cooper v. USPS, 577 F.3d 479 (2d Cir. 2009),

petition for cert. filed, 78 U.S.L.W. 3322 (U.S. Nov.

Fe ey ME is device cccscaciatitieinruseieinn 22

County of Allegheny v. ACLU,

Ae re potters checovtnaxy consortia ccsbiotaeee 16

Edwards v. Aguillard, 482 U.S. 578 (1987)............. 27

Elewski v. City of Syracuse,

Be OF ee OE CH GE, RED svcsessssacescesccesnnsessseces 21, 22

Epperson v. Arkansas, 393 U.S. 97 (1968)............... 27

Kaplan v. City of Burlington,

891 F.2d 1024 (2d Cir. 1989)..........ccsccccccesessrsseeees 33

Lee v. Weisman, 505 U.S. 577 (1992) .........cccccssssseees 15

Lemon vu. Kurtzman, 403 U.S. 602 (1971)................ 13

Lynch v. Donnelly, 465 U.S. 668 (1984)......... irs be 16

Marks v. United States, 430 U.S. 188 (1977)........... 17

McCreary County v. ACLU of Ky.,

Be I SE ID as sncccencsncnsesondncnssecsenassoces passim

Modrovich v. Allegheny County,

ee ee ee Ce Ge, BE vives esessvecsecoscsccnvscscsacenns 33

Murray v. City of Austin,

re ee BUS EE GR WIPED cn cck cvcsesccocecsscscesescecenss 33

Santa Fe Indep. Sch. Dist. v. Doe,

ee ee I os ca nsnuucencandnspasucheirsorecexexsnsscecsen 15

Sommerville v. United States,

rs I nc. cn cnanencbanenuscobaenesesesesens 31

Suhre v. Haywood County,

191 F.3d 1065 (4th Cir. 1907) ........cccscesccssesesscnsses 33

vl

Van Orden v. Perry, No. A-01-CA-833-H, 2002 WL

32737462 (W.D. Tex. 2002), aff'd, 351 F.3d 173

(5th Cir. 2003), affd, 545 U.S. 677 (2005)............ 27

Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003),

ET ic Ce Src EEF CD sdccncsescccececescceccecccicovecsets 28

Van Orden v. Perry, 545 U.S. 677 (20085).......... passim

Vasquez v. L.A. County,

467 FSG 1B6S COG Cab. BOOT) 0 .ccccscnvcccccccsccsvcccescs: 33

Weinbaum uv. City of Las Cruces,

541 F.3d 1017 (10th Cir. 2008) ................. 18, 19, 33

Rules

Wein. CR, WE; BO II acc vcssicscescsesvecessessenvevacecseseonenss 24

Other Authorities

Eugene Gressman, et al., Supreme Court Practice

SETI, INTE ua sc cccssnccusajubdcdabhanecassiaitenebesemartuineate 31

V1)

STATEMENT OF THE CASE

A, Factual Background

1. Official Approval of the Haskell County

Decalogue. Haskell County’s courthouse lawn stood

without any religious monument for more than fifty

years. In September 2004, however, in the wake of a

nationwide furor over a large Ten Commandments

monument placed in the Alabama State Judicial

Building by Alabama Supreme Court Justice Roy

Moore, the Haskell County Board of Commissioners

approved the display of its own Decalogue. During

one of the Board’s regularly scheduled meetings,

Pastor Mike Bush, a local lay minister, explained

that “the Lord had burdened [his] heart” to ensure

that a Ten Commandments monument was displayed

on the courthouse lawn and requested the County’s

approval. Pet. App. 9a, 6la.! Bush presented no

design plans or other written materials regarding his

request, though he described the monument’s

proposed size and indicated that it would depict the

Ten Commandments. Pet. App. 9a, 6la. After

hearing Bush’s religious plea, all three Board

members — Chairman Sam Cole, Henry Few, and

Kenny Short — immediately voted in favor of the

proposed display. Pet. App. 9a; App. 1014, 1388.

There was little discussion.2 App. 1125; see also App.

! In this brief, “App. __” refers to pages in Appellants’ Appendix

previously filed in the Tenth Circuit on appeal. “Pet. __” and

“Pet. App. _.” refer to pages in the Petition for Writ of

Certiorari and its appendix, respectively.

2 Though Commissioner Few testified that the Board, at some

point later, discussed “history” in relation to the monument, he

could not remember whether the discussion occurred during or

1014. At the time, the Commissioners enjoyed

unfettered discretion to accept or reject monuments

for display for any reason. Pet. App. 60a; App. 1192;

see also App. 1228-30, 1415 (Board had no written or

unwritten policy governing the display of monuments

on the courthouse lawn). For example, Respondent

James Green was denied permission in the 1990s to

erect a rose garden in honor of all Stigler High

graduates because the Board of Commissioners did

not “want to clutter up the courthouse lawn.” Pet.

App. 60a.

2. Designing and Erecting the Monument.

Pursuant to the Board’s express directive, Bush

began preparations for the monument’s construction,

raising funds with the help of Protestant religious

leaders and local church groups. Pet. App. 62a.

Though the district court found that the Board did

not specifically review or approve Bush’s design or

text for the monument, Pet. App. 67a, in authorizing

the display, the Commissioners fully anticipated not

only that Bush would select a version of the Ten

Commandments associated with his Southern

Baptist beliefs, but that the engraved text would be

after the meeting. Neither Few nor any other witness,

moreover, could recall any specific comment made or what

aspects of “history” were addressed, and the meeting minutes,

which were approved by the Board, did not reflect any such

discussion. Pet. App. 9a; App. 385-87, 1130-33, 1249.

3 Five months after this lawsuit commenced, the Board adopted

a written policy regarding the display of monuments on county

property. App. 1192. The district court determined, however,

that the post hoc “policy, and its adoption, play[ed] no part in

the outcome of this case.” Pet. App. 60a n.3

drawn from their personally favored version of the

Bible — the King James edition. App. 402 (Cole

testifying, “that’s what we looked for, and that’s what

we got’).4 Consistent with the Board’s expectation,

Bush selected text paraphrased from Exodus 20 of

the King James Bible. Pet. App. 10a, 64a. The

monument, which is eight feet tall and three feet

wide, states in bold black letters:

The Ten Commandments

I. Thou shalt have no other gods before me.

II. Thou shalt not make unto thee any

graven image.

III. Thou shalt not take the name of the Lord

thy God in vain.

IV. Thou shalt remember the Sabbath day

and keep it holy.

V. Thou shalt honor thy father and mother.

VI. Thou shalt not kill.

VII. Thou shalt not commit adultry. [sic]

VII. Thou shalt not steal.

IX. Thou shalt not bear false witness against

thy neighbor.

X. Thou shalt not covet thy neighbor's house.

Exodus 20

4 Commissioner Cole testified that a different version of the Ten

Commandments might have been treated differently. App. 403-

04.

Pet. App. 7a. Bush also decided as “an afterthought”

to add the text of the Mayflower Compact to the

other side, motivated in part by a desire to stave off

legal challenges and in part because it expressed the

“sovereignty of God.” Pet. App. 67a; App. 1022-28.

On November 5, 2004, the monument was

permanently installed on the Haskell County

Courthouse lawn.5 Pet. App. lla. The

Commissioners selected its location — the front

portion of the courthouse lawn — and marked the

spot themselves. App. 412-13, 421. The side of the

monument inscribed with the Ten Commandments

faces Highway 9, Stigler’s busiest thoroughfare, and

abuts the walkway that leads to the front courthouse

door. Pet. App. lla, 57a, 63a; App. 940. In addition

to the Ten Commandments monument, “a mélange of

. monuments of various styles, sentiments and

construction” are “[s]pread willy-nilly over the front

lawn of the courthouse.” Pet. App. 58a. Three

monuments pay tribute to Haskell County citizens

who died in World Wars | and II, the Korean War,

and the Vietnam War; a fourth honors the Choctaw

Nation; a fifth monument memorializes unmarked

graves in Haskell County; and the remaining two

monuments consist of stone benches in recognition of

the High School Classes of 1954 and 1955. Pet. App.

5 The Courthouse sits in Stigler, Haskell County's largest town,

and houses the County’s primary government offices, including

the County Sheriff, District Attorney, Election Board, Assessor,

and Judge. The County Commissioners hold their meetings at

the courthouse, and citizens visit the building to vote, pay ad

valorem taxes, access public records, and view historical

records. Pet. App. 6a; App. 434-36, 942-44, 1327-28.

6a. A sidewalk on the lawn also contains individual

bricks inscribed with messages from community

members. Pet. App. 6a. ‘The various monuments

“have no apparent central theme to the amateur

eye.” Pet. App. 59a.

Approximately eighteen months after the

monument was erected and unveiled, and six months

after this lawsuit was filed, one additional change

was made to the monument: Shortly before trial

began and following a conversation with his

attorney, Bush decided to have the words “Erected by

Citizens of Haskell County” inscribed in small print

at the bottom of the monument. Pet. App. 8a-9a;

App. 1085, 1100-03.

3. The Commissioners’ Continuing Public

Support for the Monument. After approving the

display of the Ten Commandments on the courthouse

lawn, the Board continued to offer unqualified public

support for the monument. Commissioners Cole and

Few attended the monument’s dedication, which was

“mostly religious in nature.” Pet. App. 62a. Though

the Commissioners could not recall speaking at the

event, according to Bush, who organized the

ceremony, both Commissioners addressed the crowd

of approximately 100-200 community members

representing seventeen local churches. Pet. App.

12a, 62a.

6 Petitioners’ assertion that “neither of the Commissioners who

attended the ceremony spoke,” Pet. 14, is not supported by the

record. As the district court recognized, though both

Commissioners denied speaking at the dedication, Bush

testified that he remembered both addressing the crowd. Pet.

In addition, following the dedication ceremony,

all of the Commissioners vigorously and publicly

defended the monument, often in expressly religious

terms. Local newspapers reporting on the

controversy published numerous statements by the

Commissioners regarding the monument. Pet. App.

12a-13a, 33a-34a; see App. 1230. Although the

Commissioners subsequently disavowed many of

these assertions during the litigation,” they admitted

in their testimony that they had made the following

public statements:

e “God died for me and you, and I’m going to

stand up for him. . .. I won't say that we won't

take [the monument] down, but it will be after

the fight.” Pet. App. 33a; App. 1412, 458-59.

e “That’s what we're going to live by, that mght

there. .. . The good Lord died for me. I can

stand for him and I’m going to... . I’m a

App. 62a; see App. 1098 (“I recall that both of them spoke, said

something.”).

7 For example, though various news outlets quoted

Commissioner Few as offering an identifiably religious defense

of the County’s display, at trial, Few did not confirm making

the reported statements. Compare, e.g., App. 1402 (“Whatever

the law tells us to do, we'll do. We're also Christians and

believe in God and the Ten Commandments are our path to

heaven.”), with App. 1173; App. 1400 (“My concern is that if

we're not careful, Christians will sit here and not voice our

opinions.”), with App. 1168. Though the Commissioners denied

making various remarks such as these when confronted with

them during this litigation, they offered no evidence that they

had ever disclaimed, sought to correct, objected to, or otherwise

took actions to disassociate themselves from these widely

reported comments.

Christian and |] believe in this. I think it’s a

benefit to the community.” Pet. App. 12a-13a;

App. 1393, 455-56.

e “The good Lord, he died for you and me...I

told him I would stand up for him anytime and

I will.” App. 456-57.

e “TI don’t believe in the separation of church and

state.” App. 1145-46, 1395-97.

e “I’m very, very proud that we have enough

backbone to stand up for what we believe in. I

believe the Good Lord put this up here, and I

don’t believe it will ever be taken down.” App.

547, 471 (comment made while exiting

Commissioners’ meeting).

The Commissioners also posed together

alongside the monument for myriad photographs.

Pet. App. 12a, 53a; see App. 1160-61, 1256; App. 936,

960-63, 1015-20, 1331, 1386, 1390. They understood

that these pictures were taken because they were

elected officials, not merely as random community

members, and that their actions would be construed

by their constituents as defending the County’s Ten

Commandments monument. App. 1257-58; see App.

1161.

Furthermore, when a poster depicting a young

girl praying before an American flag was affixed to

the front door of the courthouse to publicize a rally to

“Save the Ten Commandments,” the Board — which

“operates and controls county property,” Pet. App.

61a, and thus could have ordered the poster removed

to avoid any appearance of official endorsement of

the event — took no action, permitting the poster to

remain for nearly three weeks on the front door of

the courthouse. See Pet. App. 14a; App. 955-57, 1409,

1533-34. Yet, at the same time, when Respondent

Green similarly tried to display on the courthouse

door his own notice (regarding the placement of a

proposed County jail), it was removed within twenty

minutes. App. 958-59.

Commissioners Cole and Few also attended

the rally, seating themselves above the gathered

crowd in the lawn’s gazebo with local Protestant

pastors and other distinguished guests who had been

invited to speak. App. 501, 505, 511, 1314. The rally

was a thoroughly religious event that opened and

closed with prayers, featured sermon-like speeches,®

and even included an altar call of sorts, during which

Bush, noting that “if one person got saved on account

of this monument, this would all be worth it,” invited

those who had not been saved to meet at the gazebo

right after the final prayer. App. 1519, 1525; see

generally App. 1499-1527 (partial transcript of rally).

Speaking at the rally, Commissioner Few

8 According to one media report and a transcript of the event,

one of the featured pastors appeared to suggest to the crowd

that those who disagreed with the monument were wise not to

attend because they would be “hanging from the trees.” App.

1404, 1514. But see App. 509 (Cole denying that any such

comment was made at the rally).

® One witness who attended the rally testified at trial that,

when Few rose to address the crowd, he began by referencing

the fact that he was a County Commissioner (and noting that

he had, consequently, been advised not to speak). App. 1311.

On the same subject, Bush testified that, though he did not

recall Few being introduced by the title of Commissioner,

“everyone there knew him” and agreed that it was “pretty

proclaimed that anybody seeking to remove the

monument would, quite literally, have to go through

him first. Pet. App. 14a (“T’ll stand up in front of that

monument and if you bring a bulldozer up here you'll

have to push me down with it.”).

4. Community Reaction to the Monument.

The Board’s approval and installation of the Ten

Commandments monument has deeply divided the

community. Many citizens have cheered the

monument as a defense of Christian values and

religious beliefs. See, eg., App. 1404-05. For

example, in a letter to the editor regarding the

“controversial monument that the commissioners

voted to be placed on the courthouse lawn,”

Commissioner Cole’s wife wrote that she “was proud

of the stand they took for God and these young

people, whose lives have been changed by a personal

experience with God.” App. 551. See also, e.g., App.

1488 (petition in support of monument signed

“Beginning of wisdom is the fear of the Lord”).

Almost immediately after the monument was

erected, however, some community members also

objected to the display, taking offense at what they

perceived as the County’s endorsement of the

majority’s religious beliefs. Plaintiff James Green,

much” understood that he was a Commissioner. App. 1104; cf.

App. 533-37 (Cole testifying that as a County Commissioner,

“[yJou’re on all the time” and agreeing that “you’re a county

commissioner 24 hours a day, 7 days a week”); App. 1114-15

(Few agreeing that he attends certain public events to keep up

his profile as a Commissioner and remain recognizable to

constituents in his district).

who encounters the monument on a regular basis,

App. 942-44, testified:

I simply have an objection to the — to the fact

that they placed it where I cannot avoid it, and

it has certain connotations to me as a person

who has been brought up in the church and

those connotations do not agree with my —

with my theology. ... My — my fear is that — of

the monument being placed and being

promoted and defended. . . by my government

means that I’m going to be treated and people

who do not subscribe to a particular faith that

is represented by this monument, and that

we’re going to be treated differently and more

harshly.

App. 951. Elaborating on his theological objection to

the government’s Decalogue display, Green explained

that he believes the Ten Commandments conflict

with or undermine the “later teachings of Jesus,” to

which he subscribes, in that they fail to promote

principles stressed by Christ, such as love and

forgiveness. App. 946. Green also testified that he

believed the Board treated him unfairly in unrelated

actions as a result of his differing religious beliefs

and opposition to the monument. App. 951-59.

Another Haskell County citizen, Sharon

Nichols, similarly explained that she felt

discriminated against by the Board after making

known her opposition to the monument. Nichols

testified that when she called Commissioner Cole to

register her complaint about the County’s actions,

Cole inquired whether she was “a Christian.” After

Nichols declined to respond, Cole informed her, “‘T

10

don’t talk to people who are not Christians’ and hung

up on [her].”!0 App. 1324-25. Others also registered

their objections to the monument. See, e.g., App. 479-

82 (Cole testifying that a local Baptist minister had

objected to Ten Commandments display).

B. Procedural History

Plaintiffs James Green and the ACLU of

Oklahoma (collectively, “Plaintiffs” or “Respondents”)

filed this action in the U.S. District Court for the

Eastern District of Oklahoma on October 6, 2005,

against Defendants, the Haskell County Board of

Commissioners and its then-Chairman, Sam Cole,

acting in his official capacity (collectively,

“Defendants,” the “County,” “Haskell County,” or

“Petitioners”). Seeking a declaratory judgment and

prospective injunctive relief pursuant to 42 U.S.C.

§1983, Plaintiffs alleged that Defendants had

violated the First and Fourteenth Amendments to

the U.S. Constitution by displaying the Ten

Commandments monument on the county

10 The district court admitted this testimony into evidence, Pet.

App. 75a-77a, but gave it minimal weight in resolving the

merits, questioning Nichols’s credibility because her other

testimony was not “dispassionate” enough and determining that

the defendants did not have a fair opportunity to rebut it before

Cole’s death. Pet. App. 75a-77a. Respondents argued in the

court of appeals that the district court’s ruling constituted plain

error: As Nichols gave this information at her deposition on

March 2, 2006, the defendants could have attached an affidavit

from Cole denying the allegations when they filed their motion

for summary judgment two weeks later on March 13, 2006. The

Tenth Circuit did not address the issue and did not rely on this

fact in its decision.

11

courthouse lawn. App. 731. After Cole’s death on

March 18, 2006, the parties substituted

Commissioner Henry Few as a named Defendant.

App. 732. Thereafter, Commissioner Kenny Short

was substituted for Few on March 13, 2007, when

Few lost his reelection bid. On April 11, 2006, the

district court denied the parties’ cross-motions for

summary judgment. App. 718-19. The court held a

two-day bench trial beginning May 1, 2006.

On August 16, 2006, the district court issued

an opinion granting final judgment to Defendants.

Pet. App. 56a. The opinion, framed by repeated

allusions to Dante’s Divine Comedy, trivialized

Plaintiffs’ constitutional claims, labeling the entire

dispute a “kerfuffle.” Pet. App. 56a. In Cantica I],

Canto B of its opinion, the court held that Plaintiff

Green had standing to assert his claim, but ruled

that the ACLU of Oklahoma had failed to meet the

requirements for associational standing because

Plaintiffs had not submitted evidence that the

interests implicated by the lawsuit were germane to

the ACLU of Oklahoma’s purpose. Pet. App. 85a. In

Cantica III of its opinion, the district court concluded

that “Haskell County did not overstep the line

demarcating government neutrality towards

religion,” and thus did not violate the Establishment

Clause. Pet. App. 108a.

On September 14, 2006, Plaintiffs filed a

notice of appeal to the U.S. Court of Appeals for the

Tenth Circuit. App. 925. On June 8, 2009, a panel of

the Tenth Circuit unanimously reversed the district

court’s order. The Court affirmed Plaintiff Green’s

standing and found it unnecessary to address

12

whether the ACLU of Oklahoma had standing. Pet.

App. 15a. In reaching its conclusion that the

County's Ten Commandments monument violated

the Establishment Clause, the Tenth Circuit

conducted a thorough and detailed analysis of the

context and circumstances surrounding the display

to determine whether it improperly conveyed a

predominantly religious message. See Pet. App. 27a-

28a. Among other factors, the court of appeals

examined “the nature and history of the Haskell

County community, the circumstances surrounding

the Monument’s placement on the courthouse lawn,

its precise location on the lawn and its spatial

relationship to the other courthouse monuments, and

also the Haskell County community’s response to the

Monument.” Pet. App. 30a. Considering the “record

as a whole,” Pet. App. 45a, the court held that,

“under the unique circumstances presented here,”

the monument “had the impermissible or primary

effect of endorsing religion.”!! Pet. App. 5a. The

court repeatedly emphasized that its narrow decision

did not turn on any one fact, but rather was the

11 Formally, the Tenth Circuit characterized this contextual

analysis as an application of the second prong of the Lemon

test, see Lemon v. Kurtzman, 403 U.S. 602 (1971), with Justice

O’Connor’s endorsement gloss. Pet. App. 23a. The court,

however, “remain[ed] mindful [of Justice Breyer’s admonition in

Van Orden v. Perry, 545 U.S. 677 (2005)] that there is ‘no test-

related substitute for the exercise of legal judgment.” Pet. App.

23a. Having concluded that the monument violated the second

prong of Lemon, the court explained, “[WJe need not (and do

not) opine on whether the Board's action satisfies the first

Lemon prong (i.e., whether the Board’s purpose was secular).”

Pet. App. 252-26a.

result of the particular combination of facts in this

case. See Pet. App. 3la n.10, 37a, 39a, 45a. Indeed,

had the Tenth Circuit been presented with a set of

facts evincing a context different from the

circumstances here, it might have reached a different

result in light of its conclusion that “[t}he Ten

Commandments have a secular significance that

government may acknowledge” and thus can “be

constitutionally integrated into a governmental

display that highlights [their] secular significance.”

Pet. App. 27a.

On June 19, 2009, the defendants filed a

petition for rehearing en banc, which was denied on

July 30, 2009. Pet. App. 112a-113a. Two judges

wrote dissenting opinions. Pet. App. 113a-144a. On

August 17, 2009, the district court entered judgment

against Defendants and ordered the County to

remove the monument. Judgment, Green v. Haskell

County, No. 05-406 (E.D. Okla. Aug. 17, 2009). To

Respondents’ knowledge, as of this filing, the County

has not complied with the district court’s order and

the monument remains on the courthouse lawn.

14

REASONS FOR DENYING THE PETITION

I. THE TENTH CIRCUIT’S CONTEXTUAL

APPROACH IS CONSISTENT WITH THIS

COURT’S RELIGIOUS-DISPLAY JURIS-

PRUDENCE AND THE FACT-SENSITIVE

STANDARD APPLIED BY THE OTHER

CIRCUIT COURTS.

Petitioners mistake the divergent outcomes in

several circuit courts’ religious-display decisions for a

conflict in legal principle. That the Tenth Circuit

“became the first circuit court since Van Orden [v.

Perry, 545 U.S. 677 (2005)] to . . . strike down a Ten

Commandments monument displayed on government

grounds with other historical monoliths,” as

Petitioners proclaim, Pet. 11, is noteworthy only if

one reads Van Orden as dispensing with, or radically

departing from, the defining feature of modern

Establishment Clause jurisprudence: contextual

analysis. Whether grounded in the Lemon,

endorsement, or coercion tests, or a combination of

these legal standards, this Court’s opinions have

repeatedly recognized that, “under the

Establishment Clause, detail is key.” McCreary

County v. ACLU of Ky., 545 U.S. 844, 867 (2005); see

also, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290, 315 (2000) (“We refuse to turn a blind eye to the

context in which this policy arose .. .”); Lee uv.

Weisman, 505 U.S. 577, 597 (1992) (Our

Establishment Clause jurisprudence remains a

delicate and fact-sensitive one.”).

Context has been particularly central to the

Court’s analysis of religious displays because, in

15

those cases, the constitutional inquiry ultimately

focuses on whether the government’s speech conveys

or endorses a predominantly religious message — a

determination that is inextricably linked to the

specific history, facts, and circumstances

surrounding the challenged display. See McCreary,

545 U.S. at 868 (“Where the text [of the Ten

Commandments] is set out, the insistence of the

religious message is hard to avoid in the absence of a

context plausibly suggesting a message going beyond

an excuse to promote the religious point of view.”);

County of Allegheny v. ACLU, 492 U.S. 573, 597

(1989) (“the government’s use of religious symbolism

is unconstitutional if it has the effect of endorsing

religious beliefs, and the effect of the government’s

use of religious symbolism depends upon its

context”); Lynch v. Donnelly, 465 U.S. 668, 679

(1984) (“the focus of our inquiry must be on the

créche in the context of the Christmas season”); id. at

690 (“we must examine both what Pawtucket

intended to communicate in displaying the créche

and what message the City’s display actually

conveyed”) (O’Connor, J., concurring). The Tenth

Circuit and other courts of appeals have faithfully

heeded this fact-sensitive approach. Though

Petitioners may not like the result it produced in this

case, their disagreement is not grounds for review by

this Court.

A. Van Orden Did Not Abandon the

Court’s Contextual Focus.

Van Orden does not support abandoning a

contextual approach in favor of a blanket rule that

so-called “passive displays oof the Ten

16

Commandments, along with other historical

monuments on government property, do not violate

the Establishment Clause.” Pet. 10. Quite the

contrary: In his controlling concurrence,'? Justice

Breyer expressly reaffirmed a contextual standard,

noting that “no exact formula can dictate a resolution

to such fact-intensive cases.” Van Orden, 545 U.S. at

700 (Breyer, J., concurring). Justice Breyer’s inquiry

into the “message that the [monument] here

conveys,” accordingly, took account of a wide range of

contextual factors. See id. at 700-05. And although

Justice Breyer voted to uphold the Texas display, it

follows from his characterization of the monument as

a “borderline case,” id. at 700, that any change in

circumstance easily could have prompted the

opposite result. Cf. McCreary, 545 U.S. at 881

(holding display oof Ten Commandments

unconstitutional in same-day companion opinion).

While more circumscribed than Justice

Breyer’s expansive fact-sensitive analysis, the Van

Orden plurality likewise used a contextual approach,

explaining, “our analysis is driven by the nature of

the monument and by our Nation's history.” Van

Orden, 545 U.S. at 686 (plurality opinion). In

upholding the monument, the plurality took note of

the monument’s physical location (contrasting the

Capitol grounds with a public-school classroom); the

reaction of those confronted with the monument

(pointing out that Van Orden had “apparently

12 Because Van Orden was decided by a plurality, the separate,

narrower concurring opinion of Justice Breyer, who supplied

the decisive fifth vote, controls. See Marks v. United States, 430

U.S. 188 (1977).

17

walked by the monument for a number of years

before bringing this lawsuit”); the monument’s fit

within the State’s longstanding and well-established

theme for the Capitol grounds (citing the State’s past

treatment of the grounds “as representing the

several strands in the State’s political and legal

history”); and the purpose with which the monument

was erected (concluding that “it is clear from the

record that there is no evidence of such a [religious]

purpose in this case”). See id. at 691-92 & n.11.

Van Orden thus left the prevailing

constitutional landscape intact. It surely did not, as

Petitioners appear to suggest, authorize the courts of

appeals to dispense with the fact-sensitive and

nuanced analysis this Court has long applied to

religious displays, in favor of a categorical imperative

sanctioning any display that may share some

similarities with the Texas Ten Commandments

monument.

B. The Differing Resuits in the Circuit

Courts’ Religious-Display Cases Stem

From Their Factual Differences, Not

a Split in Legal Principle.

Consistent with Van Orden and this Court’s

steadfast emphasis on context, the Tenth Circuit

conducted a careful and balanced analysis of the

particular facts and circumstances surrounding the

Haskell County monument to determine whether it

conveys a religious message, repeatedly

“underscoring the proposition that ‘[c]ontext carries

much weight in the Establishment Clause calculus.”

Pet. App. 48a (quoting Weinbaum v. City of Las

Cruces, 541 F.3d 1017, 1033 (10th Cir. 2008)).'9

Each of the other courts of appeals to consider a Ten

Commandments display since Van Orden likewise

has adopted a contextual approach, considering a

range of factors to determine whether the challenged

monument improperly conveyed a religious message.

See ACLU of Ky. v. Mercer County, 432 F.3d 624, 636

(6th Cir. 2005) (“Context is crucial... .”); id. at 639

(“Although treating the subject matter categorically

would make our review eminently simpler, we are

called upon to examine Mercer County’s actions in

light of context.”); ACLU Neb. Found. v. City of

Piattsmouth, 419 F.3d 772, 776 (8th Cir. 2005) (en

banc) (“[C]onsideration must be given to the context

in which the Ten Commandments’ text is used.”);

Card v. City of Everett, 520 F.3d 1009, 1019 (9th Cir.

2008) (noting that Justice Breyer examined “the

message that the text ... conveys .. . [in] the context

of the display” and “[vjiewing Justice Breyer’s

factual analysis side by side with the factual

circumstances here”) (quoting Van Orden, 545 U.S.

at 700-01) (Breyer, J., concurring).

13 See also, e.g., Pet. App. 26a (“Establishment Clause cases are

predominantly fact-driven .. . .”) (internal quotation marks and

citation omitted); id. at 30a (“Consistent with the fact-intensive

nature of this effect inquiry, the Supreme Court has advised

that, in Establishment Clause cases, the inquiry calls for line

drawing; no fixed, per se rule can be framed.”) (internal

quotation marks and citation omitted); id. at 3la n.10 (“the

analysis must undertake a significant inquiry into the

surrounding circumstances’).

19

In light of the contextual approach taken by

both this Court and the courts of appeals, it is hardly

remarkable or unexpected that the Tenth Circuit in

this case held the Haskell County display

unconstitutional, while the Sixth, Eighth, and Ninth

Circuits approved the specific Ten Commandments

monuments before them. Those displays were

defined by a_ particular combination of

constitutionally significant and operative facts not

shared by the County’s monument, and vice versa.

Unlike the Haskell County monument, for example,

both the Card and Plattsmouth Decalogues were (1)

donated by a civic group to achieve a primarily

secular goal; (2) engraved with a nonsectarian

version of the Ten Commandments, as well as a

prominent inscription indicating that they were gifts

to the city; (3) accepted and displayed by the city

without clear evidence of an expressly religious aim;

and (4) displayed for decades without complaint.

Compare Card, 520 F.3d at 1010-13, 1020-22, with

Plattsmouth, 419 F.3d at 773-74; cf. infra pp. 26-31

(identifying numerous factual distinctions between

the Haskell County and Van Orden displays).

Similarly, the context and _s circumstances

surrounding the display of the Ten Commandments

upheld by the Sixth Circuit in Mercer are readily

distinguishable from those associated with

Petitioners’ monument.'4 The copy of the Ten

14 Petitioners’ claim that the court of appeals disregarded “the

role religion has played in our governmental institutions” and

declared it generally unacceptable “for a state to include

religious references, even in the form of sacred texts, in

honoring American legal traditions,” thereby creating a

“(cjonflict with the Sixth Circuit,” see Pet. 23-24 (quoting

20

Commandments posted in the Mercer County

Courthouse was part of a unified “Foundations of

American Law and Government” exhibit, which was

maintained by the County “to recognize American

legal traditions,” without any additional indication of

an express religious message. See Mercer, 423 F.3d

at 631-32, 637-38.

Nor is it surprising that the courts of appeals

upheld the religious displays addressed in the pre-

McCreary/ Van Orden cases relied on by Petitioners,

Books v. Elkhart County (“Books IT’), 401 F.3d 857

(7th Cir. 2005), and Elewski v. City of Syracuse, 123

F.3d 51 (2d Cir. 1997). These courts also applied a

contextual analysis to the challenged displays,

reaching conclusions that turned entirely on the

particular facts of those cases. See Books II, 401 F.3d

at 865 (court must examine “the particular display

at issue, considered in its overall context”) (quoting

Books v. City of Elkhart (“Books I’), 235 F.3d 292,

303 (7th Cir. 2000)); Elewski, 123 F.3d at 52

(“Establishment Clause case law applies a highly

fact-specific test to government-sponsored

créches[.]”). As in Mercer, the Books II Ten

Commandments display constituted only one

element of a thematically unified “Foundations of

Mercer, 423 F.3d at 639-40), is simply not supported by the

Tenth Circuit's opinion. On the contrary, refusing to adopt a

constitutional presumption against Ten Commandments

displays, the court of appeals expressly recognized that “[t}he

Ten Commandments have a_ secular significance that

government may acknowledge,” and that such displays can,

depending on their context, broadcast a permissible secular

message. Pet. App. 27a-28a.

21

American Law and Government” exhibit, which was

posted by the county without any identifiable

religious aim. See 401 F.3d at 864-68. Similarly, in

considering the créche challenged in Elewski, the

Second Circuit viewed the city’s simultaneous

display of artificial greenery, wreaths, colored lights,

decorated trees, reindeer, snowman, wire bells, and a

menorah as “part of the relevant context.” 123 F.3d

at 54. Though spread farther apart than the

monuments on the Haskell County lawn, these

elements all fit within a very specific, identifiable,

and unified theme: a holiday celebration. See id. at

54-55. By contrast, while acknowledging that “a

reasonable observer would have noticed that the

[Haskell County] Monument was one of numerous

other monuments and displays on the courthouse

lawn,” which “would typically weigh against a

finding of endorsement,” the Tenth Circuit could not

ignore the fact that the other monuments here lacked

a “unifying, cohesive secular theme.” Pet. App. 39a,

42a n.16.

As the cases relied on by Petitioners

demonstrate, differing outcomes do not always

equate to a conflict in legal principle, especially

where, as here, the outcomes depend so heavily on

the particular facts and context of each challenged

action. Indeed, were it otherwise, many of the

appellate decisions cited by Petitioners would

present intra-circuit splits, as the same courts of

appeals have held other governmental religious

displays unconstitutional. See, e.g., Cooper v. USPS,

577 F.3d 479 (2d Cir. 2009), petition for cert. filed, 78

U.S.L.W. 3322 (U.S. Nov. 17, 2009) (No. 09-608);

22

ACLU of Ohio Found. v. Ashbrook, 375 F. 3d 484 (6th

Cir. 2004); Books J, 235 F.3d 292. At its core, the

legal standard derived from this Court’s opinions and

applied by the courts of appeals is no different now

than it was before Van Orden. The confusion or

conflict, if any, rests more with the circuit courts’

disagreement over the appropriate nomenclature for

this contextual analysis than the actual substance of

the analytical process itself.

C. Petitioners’ Disagreement With the

Result of the Tenth Circuit's

Contextual Analysis Does Not

Warrant Review by This Court.

As their proposed “substantial similarities”

analysis illustrates, even Petitioners ultimately do

not take issue with the Tenth Circuit’s contextual

approach; indeed, in suggesting that the Van Orden

and Haskell County monuments are “virtually

identical,” they explicitly compare the contextual

circumstances surrounding both displays.45 Pet. 13.

Petitioners’ objection is, instead, one of application —

or rather, misapplication. Put simply, Petitioners

15 Petitioners compare a variety of contextual factors, including:

who initiated, financed, and determined the content and

location of the displays; the actual text of the monument; the

physical setting of the monument and surrounding displays;

the purpose of the donors; and officials’ attendance at the

monument’s dedication ceremony. See Pet. 13-14. Though this

cherry-picked list of purportedly “substantial similarities”

between the two monuments tells only half the story and elides

a catalogue of undisputed facts that speak to the substantial

dissimilarities between the two cases, see infra pp. 26-31, it

evinces Petitioners’ acceptance of a context-based analysis.

23

contend that the court of appeals weighed the facts

incorrectly. They argue, in essence, that the court

gave too much weight to some contextual factors and

not enough weight to others, thereby reaching the

wrong result. Were it conducting the contextual

analysis, the County clearly would place great

emphasis on the “operative facts” listed in its

petition, Pet. 13-14, while according little

significance to a litany of other factors that (1)

distinguish this case from Van Orden and the circuit

courts’ subsequent religious-display decisions, and

(2) counsel in favor of a determination that the

County’s display conveys a religious message. See

Pet. 13-14. Petitioners’ alleged “misapplication of a

properly stated rule of law,” however, is generally not

an adequate basis for review by this Court,!6

especially where, as here, it is clear that the court of

appeals reached the correct result.

II. . THE COURT OF APPEALS REACHED

THE CORRECT RESULT IN THIS CASE.

The myriad facts distinguishing the Haskell

County monument from the displays upheld in Van

Orden, Card, Plattsmouth, Mercer, Books ‘II, and

Elewski did not escape the Tenth Circuit’s attention.

Conducting a balanced and nuanced review of the

monument’s context and carefully weighing the facts

16 See Sup. Ct. R. 10 (2007) (“A petition for a writ of certiorari is

rarely granted when the asserted error consists of erroneous

factual findings or the misapplication of a properly stated rule

of law.”).

on both sides,!7 the court issued a narrow decision

that turned on the particular combination of “unique

circumstances” in this case. Pet. App. 5a. No one

factor considered by the court was determinative;

rather, the court of appeals reached its conclusion

based on the “record as a whole.” Pet. 45(a); see, e.g.,

Pet. App. 3la n. 10 (noting that while “[t]he

reasonable observer would be very unlikely .. . to

give the Board’s agreement [with Bush]

determinative weight .. . [he or she] could not negate

this circumstance as one in the totality of

circumstances that was consistent with a conclusion

that the Board’s conduct had the effect of endorsing

religion”) (emphasis added); Pet. App. 37a (“We

underscore that the reasonable observer’s impression

1” Though the court of appeals disagreed with the legal

conclusions drawn by the district court from its factual findings,

the Tenth Circuit deferred to the factual findings themselves.

See, e.g., Pet. App. 6a n.2 (“Our recitation of the facts relies

largely on the district court’s factual findings in its opinion

issued after the bench trial.”). In other words, the court of

appeals left undisturbed all of the district court’s factual

findings regarding, for example, the physical description of the

courthouse lawn and the monument itself, the events leading to

the County’s adoption and erection of the display, and the

content of the County Commissioners’ public statements in

defense of the monument. Whether those facts collectively

amount to an Establishment Clause violation, however, is

fundamentally a legal question that the court of appeals

properly reviewed de novo. Cf. McCreary, 545 U.S. at 867

(district court’s legal rulings reviewed de novo). Because

neither Petitioners nor the court of appeals takes issue with

any of the district court’s factual findings, the standard of

review applied to those findings, even if the subject of a circuit

split, as Petitioners claim, see Pet. 28-29, has no bearing on the

outcome here.

25

of government endorsement would not be based upon

the commissioners’ statements alone.”); Pet. App. 37a

n. 12 (noting that inferences drawn from Board's

failure to offer secular reason for display “would not

be determinative by any means, but it would be one

factor, among many others, that the reasonable

observer could consider in reaching a conclusion on

the endorsement issue”); Pet. App. 39a (“We

recognize that certain evidence weighs against a

finding of endorsement. However, surveying the

entire record, we cannot conclude that this evidence

sufficiently blunts the message of endorsement that

we find to be present to alter the result.”) (emphasis

added).

Given this Court’s ongoing, consistent embrace

of context as a measure of constitutionality, even if

the Tenth Circuit had viewed this case solely

through the lens of Van Orden, as Petitioners

demand, Haskell County’s Ten Commandments

monument still would not have passed constitutional

muster because there are significant, material

distinctions between this display and the monument

in Ven Orden. Unlike in Van Orden, for example,

the monument donor in Haskell County was

unequivocal in stating his “unalloyed religious

motivation”; Board members appeared immediately

to affirm this singular religious purpose; and until

litigation commenced, Board members neither gave

any indication, collectively or individually, that they

intended for the display to serve a secular purpose,

nor otherwise distanced themselves from the

religious origin of the monument. Compare Pet. App.

31a n. 10; supra pp. 1-8, with Van Orden, 545 U.S. at

26

701 (Breyer, J., concurring) (explaining that the

Fraternal Order of Eagles is a “civic (and primarily

secular) organization” that “sought to highlight the

Commandments’ role in shaping civic morality as

part of that organization's efforts to combat juvenile

delinquency”); id. (citing official resolution

recognizing secular purpose).!8& Quite the opposite:

Haskell County Board members publicly declared

their support for the monument in expressly

religious terms and posed together beside the

monument, “giv[ing] the impression of the Board’s

united endorsement.”!9 See Pet. App. 33a-35a; supra

18 There is no evidence that this resolution expressed approval

of the organization’s religious aspects, as Petitioners imply. See

Pet.’-14; Van Orden v. Perry, No. A-01-CA-833-H, 2002 WL

32737462, at *4 (W.D. Tex. 2002) (setting forth text of

resolution), aff'd, 351 F.3d 173 (5th Cir. 2003), aff'd, 5645 U.S.

677 (2005).

19 The Court properly considered these statements and photos

as part of its contextual analysis. Petitioners’ reliance on

Clayton v. Place, 884 F.2d 376 (8th Cir. 1989), in arguing to the

contrary, is misplaced. That opinion is an outlier decision from

the Eighth Circuit that predates this Court’s decisions in Lee,

Santa Fe, McCreary, and Van Orden, which all expressly

reaffirmed the import of history and context in Establishment

Clause cases. See supra pp. 15-18. Moreover, this Court has

repeatedly factored officials’ public statements, along with other

publicly available information, into its contextual analysis. See,

e.g., McCreary, 545 U.S. at 851 (citing statements made by a

county official and his pastor at a religious dedication

ceremony); Edwards v. Aguillard, 482 U.S. 578, 587, 590-93

(1987) (treating legislators’ statements as compelling evidence

that challenged statutes had been enacted for improper

purpose); Epperson v. Arkansas, 393 U.S. 97, 107-09 & n.16

(1968) (pointing to letters from the public and advertisements

used to secure adoption of an Arkansas anti-evolution statute to

highlight its religious aims). In considering these facts, the

27

pp. 5-9. In addition, unlike in Van Orden, the

dedication ceremony attended by Board members

was “mostly religious,” as was the Save the

Commandments rally at which Commissioner Few

declared that he would lie down in front of a

bulldozer to protect the monument. Compare supra

pp. 5, 7-9, with Van Orden v. Perry, 351 F.3d

173,179-80 (5th Cir. 2003) (“There is no evidence of

any religious invocations or that any minister, rabbi,

or priest were even present.”), aff'd, 545 U.S. 677

(2005).

Furthermore, as even the district court

recognized, the courthouse lawn contains a

“mélange” of monuments that are “spread willy-nilly

over the front lawn of the Courthouse” and “have no

apparent central theme to the amateur eye.” Pet.

App. 58a-59a. This haphazard physical arrangement

supported the Tenth Circuit’s conclusion that the

court of appeals did not impose a heightened Establish:nent

Clause standard on small-town government officials. See Pet.

26-27. Rather, taking into account Petitioners’ own admission

that Board members act as county officials “24 hours a day, 7

days a week,” supra note 9; the content and nature of the

Commissioners’ statements; and the fact that’ the

Commissioners made no attempt to distinguish between their

beliefs and those of the Board, the court properly concluded that

a reasonable observer would be more likely to perceive religious

endorsement under these particular circumstances. In any

event, the Tenth Circuit did not consider these statements to be

determinative of its conclusion. See Pet. App. 37a (“We

underscore that the reasonable observer's impression of

government endorsement would not be based upon the

commissioners statements alone. The statements would be just

part of the history and context of which the reasonable observer

would be cognizant.”).

28

monuments have “less of a unifying cohesive secular

theme” than those in Van Orden such that “the

Haskell County courthouse display was at least to

some appreciable degree less likely than the Van

Orden display to bring to the fore the secular

historical and moral messages of the Ten

Commandments.” See Pet. App. 42a n. 16.

Additionally, in contrast to the Van Orden display,

the Haskell County monument did not include a

statement indicating it was donated to the County

when it was erected — a detail omitted in Petitioners’

comparison of the two cases. See Pet. 13. The

language was added only “after litigation had begun

and on the eve of trial.” Compare Pet. App. 48a, with

Van Orden, 545 U.S. at 701-02 (Breyer, J.,

concurring) (noting that monument “prominently

acknowledge{d] that the Eagles donated the display,

... thereby further distanc[ing] the State itself from

the religious aspect of the Commandments’

message”).

Finally, unlike in Van Orden, the Haskell

County monument incited discord in the community

almost immediately after it was erected. While the

Texas monument stood for forty years without

challenge, the County’s display prompted litigation

within months of its unveiling. Compare Van Orden,

545 U.S. at 702 (Breyer, J., concurring), with supra

pp. 9-11. This fact is significant under Van Orden

not because the age of a monument or the length of

time it goes unchallenged are dispositive, in and of

themselves,2° but because these factors serve as

20 The court of appeals did not make this factor “determinative,”

as Petitioners claim. Pet. 16. Rather, the court was describing

29

barometers for the divisiveness of the display. This,

in turn, provides insight into what message the

community has “understood the monument” to

convey. Van Orden, 545 U.S. at 702-03 (Breyer, J.,

concurring). Here, the Commissioners, along with

many other members of the Haskell County

community, have vigorously defended the monument

in staunchly religious terms, understanding it to be

an affirmation of the community's faith and the

majority religious beliefs. See supra pp. 6-9.

As a review of the full panoply of facts reveals,

this case can hardly be characterized as “virtually

identical” to Van Orden. See Pet. 13. If the Texas

Ten Commandments monument straddled the

“borderline” of constitutional boundaries, as Justice

Breyer concluded in Van Orden, 545 U.S. at 700

Justice Breyer’s treatment of that fact in Van Orden. Pet. App.

44a. In the next paragraph, where the court of appeals

discussed the age of the Haskell County monument, the court

clarified that it was “viewing the record as a whole.” Pet. App.

45a. Moreover, this factor was “determinative” in Van Orden

only in the sense that the lack of divisiveness there, when

added to the other contextual factors highlighting the

monument’s secular message and downplaying its religious

meaning, cemented Justice Breyer's conclusion that the display

was permissible. Van Orden, 545 U.S. at 702-04. Justice

Breyer did not, as Petitioners suggest, hold that the passage of

time or age of a monument can insulate all Establishment

Clause violations, however egregious, from review, nor would

his analysis render successful every possible challenge to recent

government activity. See Pet. 16-17. Instead, his discussion

simply highlights that the likely “divisive” nature of a “more

contemporary state effort to focus attention upon a religious

text” should be factored into the contextual analysis. Van

Orden, 545 U.S. at 703 (Breyer, J., concurring).

30

(Breyer, J , concurring), there can be httle question

that the Haskell County display steps over that

line,2! violating the Establishment Clause and

rendering any dispute over the precise governing

analytical framework irrelevant to the outcome of

this case Accordingly, because resolution of the

circuit split alleged by Petitioners, even if 1t existed,

would have no bearing on the ultimate result here,

this Court should deny certiorari and wait until

presented with a case in which resolution of the

conflict below would be determinative. See Eugene

Gressman, et al., Supreme Court Practice 248 (9th

ed. 2007) (where the “resolution of a clear conflict 1s

irrelevant to the ultimate outcome of the case before

the Court, certiorar1 may be denied”) (citing

Sommerville v. United States, 376 U S. 909 (1964))

Wl. THE TENTH CIRCUIT'S STANDING

DETERMINATION IS UNEXCEPTIONAL

AND DOES NOT WARRANT REVIEW BY

THIS COURT.

Both the district court and the court of appeals

agreed that Respondent Green has standing to bring

this case. As the district court held, Green “disagrees

theologically with the Monument, and 1s confronted

with the Monument when compelled to go to the

21. This conclusion is even more evident when a number of

additional relevant factors not even considered by the court of

appeals are added to the contextual analysis, including the

numerous statements attributed to the Commissioners in the

media, later denied in litigation, see supra p 6 & n7, and

Commissioner Cole's discriminatory treatment of Susan

Nichols, see supra pp 10-1]

courthouse for business.” Pet. App. 84a. That 1s all

he 1s required to show. Green does not, contrary to

the County’s assertions, object primarily to the

Commissioners: statements regarding the

monument See Pet 30. Rather, as he testified and

both the distrmct court and the Tenth Cuircwt

acknowledged:

Green is offended by the monument because

he believes its text 1s presented as a mandate

and is thus an e endorsement by the

government of religious matters He objects to

the text of the Ten Commandments etched

into the monument because he subscribes to

the later teachings of Jesus. . Green also

beheves that his opposition has caused

Commissioner Sam Cole to destroy or ignore

Green’s open records request, his request for

hearing impairment assistance, and his

petition regarding the location of the new

county jail.

Pet App 69a; accord Pet App 13a

Unable to support thew argument that Green

has “not proved sufficient facts to establish

standing,” Pet. 30, Petitioners instead ask this Court

to rewrite the basic, time-honored principle that

observers who are personally and directly confronted

and affected by unwelcome governmental displays of

religious symbols have standing to challenge those

displays That principle has never been rejected 1n

any Establishment Clause decision involving

religious displays, either in this Court or any federal

court of appeals.*? Accordingly, the issue of Green’s

standing does not warrant this Court’s review.

22 See, e.g., McCreary, 545 U.S. at 844-80; Van Orden, 545 U.S.

at 677-692 (plurality opinion) & 698-706 (Breyer, J.,

concurring); Weinbaum, 541 F.3d at 1028-29; Vasquez v. L.A.

County, 487 F.3d 1246, 1249-53 (9th Cir. 2007); Modrovich v.

Allegheny County, 385 F.3d 397, 399-415 (3d Cir. 2004);

Plattsmouth, 419 F.3d at 775 n.4; Adland v. Russ, 307 F.3d 471,

478 (6th Cir. 2002); Books I, 235 F.3d at 299-301; Suhre vu

Haywood County, 131 F.3d 1083, 1090 (4th Cir. 1997); Murray

u. City of Austin, 947 F.2d 147, 150-52 (5th Cir. 1991); Kaplan v.

City of Burlington, 891 F.2d 1024, 1027 (2d Cir. 1989); ACLU of

Ga. v. Rabun County Chamber of Commerce, Inc., 698 F.2d

1098, 1107-08 (11th Cir. 1983).

33

CONCLUSION

For the foregoing reasons, this Court should

deny the petition.

Respectfully Submitted,

Daniel Mach

Counsel of Record

Heather L. Weaver

AMERICAN CIVIL LIBERTIES

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34