McCreary County v. ACLU
Briefs and other information about the McCreary Ten Commandments caseMajority | Concurrence and Dissent
Oral Arguments: Transcript for ACLU v. McCreary County
Findlaw Information Page with Document Links
First Amendment Center Information Page
Sixth Circuit Opinion
Supreme Court Docket
Petition for Certiorari (filed by Liberty Counsel)
ACLU Brief in Opp. To Certiorari
Petitioner’s Brief
Attorneys: Mathew D. Staver, Erik W. Stanley, Anita L. Staver, Rena M. Lindevaldsen, Bruce W. Green Mary E. McAlister, Lindsey F. Martin, Johnnie L. Turn all of Liberty Counsel
http://www.alliancealert.org/2005/commandments/mccreary/petitionersbrief.pdf
The Foundations Display passes every test developed by this Court. Under Lemon v. Kurtzman, 403 U.S. 602 (1971), the secular purpose is to educate the public about some of the “documents that played a significant role in the foundations of our system of law and government.” The mere presence of the Ten Commandments does not transform the otherwise secular Display into a religious one. The Sixth Circuit erroneously demanded some “demonstrated analytical or historical connection” with the other documents. That the Display is about law and that the Decalogue is law and has influenced American law should be sufficient. The Display is not meant to debate American history, nor is its purpose to present a treatise on law. Petitioners’ purpose is to educate about law, and that purpose is secular, not religious. Although the Sixth Circuit agreed that the FoundationsDisplay does not emphasize the Ten Commandments, it faulted the placement of them with legal documents. The court below erred by finding the Commandments to be an “active symbol of religion” that converts a secular display into a religious one. The majority also erred by holding that the prior displays tainted the Foundations Display. If the prior displays were devoid of a secular purpose, which Petitioners deny, the Foundations Display clearly is not. If government missteps on an Establishment land mine, it should be allowed to correct itself. The Foundations Display is most relevant to purpose. The Display is about law, not religion.
No reasonable observer would consider the Foundations Display an endorsement of religion. Such an observer, aware of the historical influence of the Ten Commandments, would view them in context with the other legal documents. Being only one of eleven documents in a display on law and viewed in light of history and ubiquity, no objective observer would conclude the Display favors or establishes religion.
The Display passes the test in Marsh v Chambers, 463 U.S. 783 (1983). Government use of and reliance upon the Ten Commandments runs from Colonial times to the present. They have influenced the development of American law. The drafters of the First Amendment would not have conceived that the Establishment Clause would require the removal of a passive display like the one before this Court. The Display also passes the coercion test in Lee v.Weisman, 505 U.S. 577 (1992). Viewing a passive Display that includes the Decalogue is not an overt religious exercise. Onlookers are primarily adults who may avert their glance and freely pass. Passersby are not compelled to participate in a religious exercise, nor are they coerced to view the Display.
Although the Display passes the Lemon test, this Court should overrule or modify the test. At a minimum, the purpose prong should be abandoned. It focuses too much on subjective motives when the focus should be on the objective effects of an activity. This Court should adopt a new test for government acknowledgments of religion. Justice O’Connor’s proposed test in Elk Grove Unified School District v. Newdow, 124 S. Ct. 2301, 2322 (O’Connor, J., concurring), is a starting point. Each factor should be carefully considered to avert another Lemon. “History and ubiquity” are important factors to include. The “absence of worship or prayer” factor may be difficult to apply because dividing speech from worship is fraught with problems. The “nonsectarian consideration” is workable so long as context is considered, as in the creche and menorah cases. Caution must be exercised so that the “minimal religious content” factor does not lead to word counts. Perhaps the test should include some element of coercion, being understood as compulsion. At any rate, the Display passes every test, including all aspects of Justice O’Connor’s proposed test. Whatever the test, it should respect our religious heritage by distinguishing between real establishments and permissible acknowledgments of religion.
Amici in Support of the Commandments Displays
Alabama, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Ohio, Pennsylvania, Souther Caroline, Texas, Utah, Virginia, and Wyoming
Attorneys: Troy King, AG of Ala.; Kevin S. Newsom, Solicitor General of Ala.; Charles B. Campbel, Asst. AG of Ala. et. al.
http://www.alliancealert.org/2005/commandments/mccreary/alabama.pdf
Depictions of the Ten Commandments are a common feature of public life in the United States. Such displays—whether exhibited as symbols, monuments, plaques, or documents—date back at least to the 1870s, and there are today (literally) thousands of them across the country. The displays are particularly common at seats of government, and are perhaps most often found in and around courthouses. Indeed, this Court’s own build-ing contains more than a dozen depictions of the Commandments. The history and ubiquity of displays on public property involving religious themes in general, and the Ten Commandments in particular, merely confirm this Court’s observation that “[t]here is an unbroken history”—here, going back some 130 years—“of official acknowledgment by all three branches of government of the role of religion in American life.” . . . [The displays satisfy all existing Supreme Court tests. The Lemon test has engendered confusion in the lower courts and the test is internally inconsistent with itself. It should be abandoned and replaced with the coercion test articulated by Justice Kennedy in Allegheny. Madison and Jefferson are cited extensively in support of the coercion test.]
Madison, Mason, and Jefferson indicate that the principal evil targeted by the Establishment and Free Exercise Clauses was government coercion through actual (i.e., physical or legal) compulsion in religious matters. That is, the kind of coercion the Framers contemplated apparently involved actions that would truly “compel” religious belief, practice, or financial support with “force,” “violence,” or “law.” See also Lee, 505 U.S. at 640 (Scalia, J., dissenting) (“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”) . . . Second, the amici States do not contend that the coercion test is a “one-size-fits-all” solution to Establishment Clause problems. The Court has already eschewed “any single test or criterion in this sensitive area.
American Ctr. for Law & Justice
Attorneys: Jay Sekulow, Stuart J. Roth, Francis J. Manion, Walter M. Weber, and Geoffrey R. Surtees all of ACLJ
http://www.alliancealert.org/2005/commandments/mccreary/aclj.pdf
http://www.alliancealert.org/2005/commandments/mccreary/acljappendix.pdf
The history and ubiquity of governmental and other secular recognition of the Decalogue Supports the inclusion of the Ten Commandments in a Display of Foundations of American Law. [The brief then provides lengthy citations to judicial and executive branches supporting this contention coupled with the pervasiveness of the Commandments on public property and in the culture at large.] “Given the historically undeniable secular impact of the Decalogue on the development of our legal system, as well as its culturally pervasive use as a symbol of secular law, the Sixth Circuit’s virtual presumption of invalid religious purpose and implicit requirement that governments go to extraordinary lengths to “secularize” displays of the Decalogue is unwarranted by the Establishment Clause.’
American Legion
Attorneys: Philip B. Onderdonk Jr. of American Legion; Kelly Shackelford and Hiram S. Sasser, III of Liberty Legal Institute
http://www.alliancealert.org/2005/commandments/mccreary/americanlegion.pdf
This case presents an opportunity for this Court to protect public displays of religious imagery and preserve our Nation’s veterans memorials. Religious imagery has permeated American military culture throughout the history of the United States. Through veterans memorials and the religious imagery that marks so many memorials, the people of this Nation find solace and meaning for the sacrifice of our sons and daughters and are inspired by an eternal hope for the future of this country. Lower federal courts have misused the endorsement test to destroy veterans memorials bearing religious imagery. Hecklers have successfully misused the endorsement test to remove any religious reference in the public square, doing great damage to this Nation’s veterans memorials. This Court should protect public acknowledgement of religion and preserve our Nation’s veterans memorials, which strive to honor the sacrifice of our sons and daughters and give meaning for such sacrifice and an eternal hope for generations to come.” . . . While the intellectual elite may lay siege to such notions with the pen from the comfortable confines of the Ivory Tower, it has been the sacrifice of countless Americans willing to die for something greater than themselves that has secured that very freedom for their critics.
American Liberties Institute
Ashbrook Ctr. For Public Affirs
Becket Fund
Attorneys: Anthony R. Picarello, Jr., Derek L. Gaubatz, Jared N. Leland all of Becket Fund for Religious Liberty
http://www.alliancealert.org/2005/commandments/mccreary/becketfund.pdf
The purpose of this brief is to illustrate by examples the longevity, ubiquity, and diversity of the American tradition of allowing—rather than selectively excising—religious elements as part of government cultural expression. This widespread pattern of government behavior does not represent the “endorsement” of any one religion or religion generally. Instead, it is simply the ongoing recognition and acknowledgement of the important role of America’s many religions in its public life—activities that this Court routinely permits under the Establishment Clause. In order to respect the flourishing of religious diversity that this government expression reflects, courts should review it with deference. Specifically, the reasonable observer should be deemed familiar with the broader phenomenon that ordinary cultural expression by government will frequently contain religious elements in a religiously diverse society. [cites numerous examples of religion in American government]
Conservative Legal Defense and Ed. Fund et. al.
Attorneys: Herbert W. Titus, William J. Olson all of William J. Olson, P.C.
http://www.alliancealert.org/2005/commandments/mccreary/conservativelegaldefensefund.pdf
The central question presented in this case is whether this Court’s test laid down in Lemon v. Kurtzman, 403 U.S. 602 (1971), and any variant thereof, applying the Establishment Clause of the First Amendment to the several states should be overruled. For years, the Lemon test has been roundly criticized as unworkable3, but that is only a secondary reason to reject it. Rather, this Court should overrule Lemon because it rests upon the wholly illegitimate premise that the Establishment Clause applies to the States through incorporation into the Fourteenth Amendment’s Due Process Clause. This Court has not entertained any serious challenge to that doctrine since Duncan v. Louisiana, 391 U.S. 145 (1968), but, if a constitutional doctrine proves to be erroneous, its longevity is no reason to keep it. See C. Rice, “The Bill of Rights and the Doctrine of Incorporation,” The Bill of Rights 11 (E. Hickok, Jr., ed., Univ. Press of Va.: 1991). Each justice of this Court has a continuing, sworn obligation to ensure that the Court’s doctrines are consistent with the text of the Constitution . . . Indeed, this Court’s decisions, which have transmuted the original historical purpose of the Establishment Clause as a shield of protection of the states from the exercise of federal power4 into a sword of supremacy of federal power over the states — contrary to the powers reserved to the States and the people by the Tenth Amendment — should be stricken as an illegitimate exercise of political will by this Court . . .
To correct this error, this Court should return to the original meaning of the Fourteenth Amendment’s Due Process and Privileges and Immunities Clauses, as set forth in this Court’s opinions in the Slaughter-House Cases, 83 U.S. 36 (1873), and Davidson v. Board of Administrators of the City of New Orleans, 96 U.S. 97 (1878), neither of which has ever been expressly overruled. Both preserve the Constitution’s federalist structure, recognizing that the state and local citizenry retain the constitutional authority to make their own decisions concerning matters such as displays of the Law of God. Finally, to continue to usurp power over the States and their political subdivisions by misapplying the Establishment Clause — as this Court has done since Everson v. Board of Education, 330 U.S. 1 (1947) — while requiring all other branches of the federal and state governments to support this Court’s decisions as the supreme law of the land — as this Court has done since Cooper v. Aaron, 358 U.S. 1, 18-19 (1958) — would thrust a dagger into the very heart of the rule of law. See R. Berger, Government by Judiciary 289 (Harvard Press: 1977). In truth, any elevation of this Court above the Constitution undermines the oaths of all federal judges before God to “support this Constitution” as the “Supreme Law of the Land,” as prescribed by 28 U.S.C. Section 453, and as further reflected in this Court’s practice to open its public sessions with the prayer, “God save this honorable court.” A court which disregards its oath and its prayer risks judgment of the “rectitude of [its] intentions” by the “Supreme Judge of the world” and deprivation of the “Protection of Divine Providence” on the nation, as invoked by America’s founders in the Declaration of Independence (para. 31). Sources of Our Liberties at 321.
Eagle Forum Education & Legal Defense Fund
Attorneys: Phyllis Schlafly of Eagle Forum, Douglas G. Smith of Kirkland and Ellis, LLP
http://www.alliancealert.org/2005/commandments/mccreary/eagleforum.pdf
The Lemon test has proven unworkable and restricts religious liberty in a manner that is inconsistent with the original meaning of the First Amendment. The Establishment Clause was originally viewed as a federalism provision that protected state establishments from interference by the federal government. The Framers wisely recognized that the individual states should remain free to adopt diverse practices with respect to religion without the threat of an established church at the national level. The Lemon test is inconsistent with this original understanding. It interjects the federal government into state decisionmaking in a manner that restricts religious liberty. Even under the Lemon test, however, the Ten Commandments displays at issue here are constitutional.This Court has recognized in decisions such as Marsh v. Chambers that governmental action that has both religious and historical significance does not violate the Establishment Clause. Indeed, even in Stone v. Graham where the Court held that a particular Ten Commandments display ran afoul of the establishment prohibition, it further held that the Ten Commandments could be displayed as lo ng as their historicalsignificance was conveyed along with their religious meaning. The displays at issue here conveyed both a historical and religious meaning. Accordingly, they do not violate the Establishment Clause under the test set out in Lemon.
The lower court’s ruling to the contrary was based on a misapplication of this Court’s precedents. The lower court concluded that the displays violated the Establishment Clause only after engaging in a highly speculative analysis concerning the subjective intentions of the proponents of the displays. The test under Lemon, however, is an objective one, focusing on whether a “reasonable observer” would understand the display to constitute an “establishment” or “endorsement” of a particular religion. Should the Court retain the Lemon test despite its many flaws and lack of historical foundation, it should clarify that the constitutional test under Lemon is an objective one
Faith and Action et. al.
Attorney: Bernard P. Reese, Jr. of Reese and Reese
http://www.alliancealert.org/2005/commandments/mccreary/faithaction.pdf
[From the Brief’s conclusion]
With adequate citation of authority: (1) Declare the Declaration to contain this nation’s philosophy of government; that it is part of our documents of origin and is consequently enshrined in our Constitution; (2) Redefine the “establishment clause” that it is subordinate to the provisions of the Declaration of Independence; (3) That under such redefinition, a display of the Ten Commandments is permitted and such other activities as are consistent with the philosophy of government contained in the Declaration of Independence; (4) Establish clear rules of evidence to be followed in the trial court which would determine on motion by the trial judge whether the plaintiff had standing to bring the action, taking into consideration who was financing the litigation, whether there was actual injury taking place, and permit depositions for that purpose; (5) That appropriate expression of the Philosophy of Government contained in the Declaration of Independence cannot be restrained otherwise it constitutes a violation of the “free exercise clause” of the First Amendment. As such it is entitled to public expression; (6) Provide a clear definition of religion as opposed to a belief in God or his moral laws and predicate evidentiary instructions on that basis; (7) Establish instructions on who was responsible to carry the burden of proof, when that burden shifts, and the level of proof required whether it be by preponderance of the evidence, or beyond a reasonable doubt.
Family Research Council and Focus on the Family
Attorneys: Profs. Gerard Bradley and Robert George
http://www.alliancealert.org/2005/commandments/mccreary/frcfof.pdf
The Sixth Circuit’s analysis of both the displays and the pertinent law was grievously mistaken. Contrary to what that court held, many Supreme Court precedents confirm what historians of America have long maintained: our constitutional and legal traditions cannot be accurately understood without recognizing their roots in a theistic worldview. But not just any theistic tradition; as this Court has said repeatedly, our beliefs in human rights and limited government, along with other fundamental convictions, have deep roots in the ethical monotheism of the Bible. The Ten Commandments are the central expression of this worldview. The document displays challenged below recognize what this Court’s cases have long taught. The displays fairly and impartially indicate that biblical ethical monotheism underlies American constitutional and legal traditions.The displays studiously avoid advancing, endorsing, or otherwise vouching for the Bible as truly being the Word of God, or the religions based upon it. The displays therefore comport with all this Court’s relevant precedents, as they were articulated most perspicaciously by Justice Powell in the case of Edwards v. Aguillard, 482 U.S. 578, 606-07 (1987) (Powell, J., concurring).
Foundation for Moral Law
Attorneys: Roy S. Moore, Benjamin D. Dupre, Gregory M. Jones all of Foundation for Moral Law
http://www.alliancealert.org/2005/commandments/mccreary/foundationmorallaw.pdf
The display of the Ten Commandments on public property does not violate the Establishment Clause of the First Amendment because such displays do not implicate the text thereof, particularly as it was historically defined by common understanding at the time of the Amendment’s adoption. The Ten Commandments displays (“the displays”) erected by McCreary and Pulaski counties (“the Counties”) are therefore constitutionally unobjectionable. It is the responsibility of this Court and any court exercising judicial authority under the United States Constitution to do so based on the text of the document from which that authority is derived. A court forsakes its duty when it rules based upon case tests that bear no resemblance to or take the focus away from the text of the constitutional provision at issue. Amicus urges this Court to return to first principles in this case and once again to embrace the plain and original text of the Constitution to guide its Establishment Clause jurisprudence. The text of the Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” U.S. Const. amend. I (emphasis added). When these words are applied to the Ten Commandments displays at issue, it becomes evident that the displays are not a law, they do not dictate religion, and they do not represent a form of an establishment. Thus, a textual analysis demonstrates that the displays of the Ten Commandments in the courthouses of the Kentucky counties are not prohibited by the Establishment Clause.
Judicial Watch
Attorneys: Paul J. Orfanedes and Meredith L. Cavallo of Judicial Watch
http://www.alliancealert.org/2005/commandments/mccreary/judicialwatch.pdf
One of the biggest sources of confusion in contemporary constitutional jurisprudence is the Establishment Clause - specifically, the proper relationship between the
Establishment Clause and the protection of individual rights. Does the Establishment Clause directly protect individual rights in the same way the Free Expression Clause does? Or does the Establishment Clause protect individual religious expressions indirectly by prohibiting the creation of a national religion and prohibiting discrimination among various religious groups? These questions have become increasingly difficult to answer due to the confusion in Establishment Clause precedent. The lack of any consistent Establishment Clause principles has led to such artificial “tests” as the Lemon test, which has only increased the confusion surrounding the application of the Establishment Clause. The Lemon test was promulgated as the end-all and be-all of Establishment Clause jurisprudence, but was almost immediately diminished or ignored by this Court. Nonetheless, it has become the standard that the lower courts feel obligated to follow. This case presents the Court with the opportunity not only to clarify the proper application of the Establishment Clause, but also to overrule the Lemon test. However, even if the Court determines that a clarification of the Establishment Clause is unnecessary and applies the Lemon test to this case, the Circuit Court clearly erred in affirming the permanent injunction entered against Petitioners because none of the displays at issue violate the Establishment Clause.
Minnesota, Missouri, Illinois, Iowa, New Mexico, Oklahoma, and Wisconsin
Attorneys: Mike Hatch, AG of MN; John S. Garry, Asst. AG of MN et. al.
http://www.alliancealert.org/2005/commandments/mccreary/minnesota.pdf
A depiction of the Ten Commandments in a courthouse setting does not violate the Establishment Clause when it is part of a display of other historical symbols of the legal system. Such a display does not violate the Establishment Clause because it satisfies each of the three prongs of the prevailing test set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). There is a secular purpose for such a display; a reasonable observer would not understand such a display to be a government endorsement of the religious aspect of the Ten Commandments; and such a display does not foster excessive governmental entanglement with religion. The contrary decision of the Sixth Circuit rests on a misapplication of this Court’s precedents under the Lemon test. The Court should reject the Sixth Circuit’s faulty reasoning and remove the doubt it creates for the continuation of displays such as that in the courtroom of the Minnesota Supreme Court.
Pacific Justice Institute
Rutherford Institute
Attorneys: John W. Whitehead, Rita M. Dunaway, Douglas R. McKusick all of Rutherford
http://www.alliancealert.org/2005/commandments/mccreary/rutherford.pdf
The historical document display that the Sixth Circuit found to violate the First Amendment’s Establishment Clause due to the inclusion of the Ten Commandments is consistent with displays that this Court has upheld against Establishment Clause challenges. The Sixth Circuit’s opinion includes an unwarranted intrusion into the logic behind local government officials’ choice to include the Ten Commandments in the display along with numerous secular documents.
However, the court’s opinion is indicative of a much greater problem: a modern Establishment Clause jurisprudence that is unworkable and yields bad results. Amicus respectfully submits that this Court not only should reverse the decision below and uphold the particular display at issue here but, more importantly, should rework its Establishment Clause analysis in fundamental respects. Amicus maintains that the Court should renounce the Establishment Clause test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971), abandon its practice of incorporating the Establishment Clause into the Fourteenth Amendment for application to the states, and return to a historically accurate and logically sound application of the Clause to the federal government.
Thomas More Law Ctr.
United States
Attorneys: Paul D. Clement, Acting Solicitor General; Peter D. Keisler, Asst. AG; Gregory G. Katsas Deputy Asst. AG; Patricia A. Millett, Asst. to the Solicitor General; Robert M. Loeb and Lowell v. Sturgill Jr., Dept. of Justice
http://www.alliancealert.org/2005/commandments/mccreary/us.pdf
This Court has twice considered and twice upheld the inclusion of a religious symbol in a governmental display commemorating a variety of influences on the Nation’s history and culture. Petitioners’ inclusion of the Ten Commandments in a display that acknowledges multifarious influences on the development of American law should likewise be upheld. Justices of this Court, decisions of lower courts, and the writings of countless historians and academics have long recognized the significant influence that the Ten Commandments have had on the development of American law. Acknowledging that influence as part of a broader display memorializing historic contributions to American law and government serves the valid secular purpose and secular effect of educating persons about the Nation’s history and celebrating its heritage. Indeed, it is commonplace for courthouses and capitol buildings to include commemorative displays of legal, political, and cultural history, and that background tradition informs how displays like petitioners are reasonably perceived. Moreover, acknowledging that a document with religious significance also played an important role in the development of secular law in no way undermines or dilutes the religious significance of that document. As this Court has repeatedly recognized, the political and legal history of the United States is infused with religious influences, and the Establishment Clause does not require government to ignore or minimize that reality. Governmental commemorations of history, heritage, and culture properly need not exclude references to religious influences. To hold, as the court of appeals did here, that any acknowledgment of religious history must be accompanied by elaborate disclaimers or explanations bespeaks a fundamental hostility to or suspicion of religion that has no place in Establishment Clause jurisprudence.
Finally, the court of appeals’ conclusion that petitioners’ prior displays and the litigation surrounding them indelibly tainted the current display is fundamentally flawed. First, the unconstitutionality of the initial display is not obvious and, in any event, the display at issue bears little resemblance to the aspects of the prior displays that troubled respondents. Second, governmental officials are presumed to adhere prospectively to their constitutional duties and, accordingly, courts should be reluctant to equate past conduct with a present invidious purpose to defy constitutional limits. The Establishment Clause inquiry should turn upon the objective purpose served by the display as a whole, not subjective motivation. While the always elusive hunt for subjective purposes does much to promote litigation, it does little to promote Establishment Clause values in the context of passive displays in courthouses.
Wallbuilders, Inc.
Attorneys: Barry C. Hodge and Steven W. Fitschen of The National Legal Foundation
http://www.alliancealert.org/2005/commandments/mccreary/wallbuilders.pdf
The Ten Commandments have both religious and historical significance. This brief will explain how each one of the Ten Commandments has historically impacted American law and jurisprudence and thus, why the Ten Commandments should be permitted to be displayed with other political and patriotic documents. In this regard, this Brief will greatly expand upon the information contained in Petitioner’s Brief.
Amici in Opposition to the Commandments Displays
American Atheists
American Humanist Assoc. et. al.
Attorneys: Jacob B. Rolls and Elizabeth L. Hileman of American Humanists Foundation
http://www.alliancealert.org/2005/commandments/mccreary/americanhumanists.pdf
The Lemon test is a sensible reflection of the values embodied in the Establishment Clause and remains an eminently workable and dynamic model to assess the constitutionality of government activity. Just as the Establishment Clause itself embodies multiple values, so must the tests that this Court employs to decide acceptable Constitutional parameters. Because of our unique national history, it is now widely accepted that our government cannot legislate in a manner that endorses one religion over others, or religion generally. It is equally clear that our system of government is not designed to undertake actions, the principal purpose or effect of which is to advance religion, and that our government must not allow itself to become excessively entangled with religion or religious matters. As difficult as it may be to navigate the challenges presented when our collective civic and religious values conflict, it is imperative that we respect the constitutional values that give meaning to the Establishment Clause. Those values are adequately represented in the three-pronged Lemon test as it has evolved and been refined through this Court’s decisions.
The Ten Commandment displays at issue in McCreary and Van Orden violate the Establishment Clause by failing to satisfy one or both of the religious purpose and effects tests set forth in Lemon. The “plainly religious” nature of the Ten Commandments justifiably elevates courts’ skepticism of proffered legislative purposes for posting them, and this Court is also correct to examine the context, content, and history of Ten Commandment displays in order to decipher true legislative purposes. The nature of the analysis required under the Establishment Clause mandates this comprehensive examination, and early indications of religious or secular purposes clearly and importantly assist the courts in determining whether particular legislative actions are wholly, partly or predominantly secular or religious. The purported purposes for the displays at issue in McCreary, while perhaps appearing secular in their final version, are nevertheless predominantly religious. In McCreary this is exacerbated by the clear religious purpose of the original and second display efforts, and by the superficial and misguided attempt to characterize the historical contributions of the Ten Commandments to our nation’s legal system. In Van Orden the purported purpose cannot be characterized as “bona fide, legitimate, and not a mere sham” because of the plainly religious nature of the Ten Commandments monument and the absence of a logical connection between the monument’s display and the purported purpose.
The displays at issue in McCreary and Van Orden violate the “effects” prong of the Lemon test. When employing the “objective observer” standard, it is clear that the primary effect of the displays is to advance religion, specifically Christianity and Judiasm. It is also clear that surrounding the Ten Commandments with secular objects communicates government endorsement of religion, especially when, as is the case here, there is no effort to explain the historical, legal or cultural relevance of the Ten Commandments to the secular objects. The display of any version 2 of the Decalogue on public property under the circumstances presented in these cases has the clearly discernable effect of communicating government endorsement of religion (specifically monotheism). These displays also violate the “coercion” test that this Court employs in Establishment cases.
Anti-Defamation League
Attorneys: Jeffrey R. Babbin, Aaron S. Bayer, Kenneth D. Heath all of Wiggin and Dana LLP
http://www.alliancealert.org/2005/commandments/mccreary/antidefamationleague.pdf
[The Decalogue is not part of a generic “Judeo-Christian Tradition” and historically has been a significant source of tension between these Two faiths.]
[Summary of the Summary]
“This brief ’s discussion of religious sources and scholarship underscores how the Ten Commandments are a vital expression of religious identity and symbolism – albeit an expression that is far from uniform or free of doctrinal controversy. As we show through historical events and the works of religious scholars over the last two millennia, the Decalogue is not symbolic of a uniform Judeo-Christian legal tradition, but is in fact at the center of historical differences between two different legal traditions. Thus, the notion of the Judeo- Christian tradition – which itself was a mid-twentieth century innovation by American Protestant thinkers – does not provide a theological base on which to build a legal justification for government’s display of the Decalogue. For Jews, the Ten Commandments are part of God’s unique covenant with the people of Israel as God’s chosen people, and one part of a wider set of binding, biblical laws of divine origin. For Christians, the Ten Commandments are fundamental principles of natural law that, as restated by Jesus, apply to all humanity. By viewing the Decalogue in this manner, divorced from its original context at Mount Sinai, early Christianity rejected the remainder of Jewish law – the Law of Moses in the first five books of the Bible (the Torah or Pentateuch) – as outmoded rules that do not apply to the new people of God, the Christians. Accordingly, while the Ten Commandments have important religious meaning for Christians, they also symbolize Christianity’s rejection of other principles of Jewish law. The Ten Commandments historically have been used as a symbol of these religious differences . . .
The displays here do have the effect of endorsing a religion, while not respecting others. While the designers of the Texas monument say they sought to erect a “nonsectarian” monument to God, they could do so only by endorsing Judaism or Christianity and ignoring all other religions. By placing Jewish symbolism alongside symbols for Jesus as the Messiah, and elevating a Christian translation of the Ten Commandments for special veneration apart from the rest of Mosaic law, the monument endorses a Christian religious view. The Kentucky courthouse displays make no attempt to be inclusive, instead using a Protestant translation of the Decalogue, omitting entirely the text that is most fundamental to the Jewish understanding of the Ten Commandments, i.e., the opening reference to the people of Israel (“I the Lord am your God, who brought you out of the land of Egypt, the house of bondage . . . .”).”
Atheist Law Ctr.
Attorneys: Pamela L. Sumners, Larry Darby of Atheist Law Ctr.
http://www.alliancealert.org/2005/commandments/mccreary/atheistslaw.htm
Baptist Joint Committee
Council for Secular Humanism and International Academy of Humanism
Legal Historians and Law Scholars
Amici that Take No Position on the Propriety of the Displays
National School Boards Assoc.
Attorneys: Julie Underwood of National School Boards Assoc.
http://www.alliancealert.org/2005/commandments/mccreary/nationalschoolbdsassoc.pdf
The conflict and confusion in the courts as to which Establishment Clause analysis to apply and how to apply it have caused great chaos and confusion for communities, public school administrators, and board members when questions regarding the role of religion in public schools arise. Questions regarding the role of religion in public schools are pervasive and frequent across the nation. E.g., How much religious music can be included in a school concert? How may schools recognize religious holidays? Can students distribute religious flyers in school? How far can teachers go in professing their personal religious beliefs within the school? Every day public school administrators and board members across the nation face these questions. Every day their decisions are challenged by interest groups who choose to use the schools as their forum to clarify the boundaries of religious rights and individual liberties. By setting forth a clear and consistent analysis for use in Establishment Clause cases, this Court would help minimize these disputes and the ensuing litigation that plague our nation’s schools.
Amici urge this Court to adopt the “endorsement analysis” as the overarching framework for Establishment Clause cases. Consistent use of the endorsement analysis would assist public school administrators and board members since it retains the concepts of purpose and effect, concepts clearly derived from the Lemon test. However, it provides some much needed clarifications. It focuses on the actual and perceived purpose and effect of the activity in question. Secondly, it provides flexibility by using the “reasonable observer” standard. Finally, it recognizes the concept that no individuals should feel they are not full members of our nation due to their religious beliefs, which is critically important to the relationship between students and the public schools. This Court’s clear adoption of this analysis would help public schools handle Establishment Clause issues in a way that respects the relationship between school and student and recognizes the “dizzying religious heterogeneity” of our nation. Newdow, 124 S.Ct. at 2321. Currently, the intersection of public schools and religious faith is legally and politically fraught with peril. Clarity and consistency are needed to guide public school administrators’ and board members’ decision-making and actions on the appropriate role of religion in the public schools. Clarity and consistency are needed to provide a clear standard against which their decisions and actions can be measured. This would offer credibility to their decisions and actions. Clarity and consistency from this Court could build a consensus within the nation on the appropriate role of religion in our public schools and thereby reduce the disputes and ensuing litigation that encumber our nation’s public schools.
